In National Association for the Deaf v. Netflix, Inc., the U.S. District Court for the District of Massachusetts held that Netflix’s Internet video-streaming service, known as “Watch Instantly,” constitutes a place of public accommodation that must ensure accessibility for the disabled. Decisions in the Second, Seventh, and Eleventh Circuit Courts of Appeals also have found that the Americans with Disabilities Act (ADA) extends to non-physical places. However, the Third, Fifth, Sixth, and Ninth Circuit Courts of Appeals have all limited the application of the ADA to physical spaces. The Netflix decision deepens this disagreement among the federal courts on this issue.

Under the ADA, places of public accommodation are prohibited from discriminating against individuals because of their disabilities. Covered businesses are required to remove barriers to access for persons with disabilities and take steps to ensure accessibility to persons with disabilities. The ADA relieves businesses of these requirements only if they can demonstrate that making such accommodations would “fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.”

The dispute in the Netflix case arose because video on the “Watch Instantly” service is not available with closed captioning and fails to provide any other accommodation to enable hearing impaired individuals to fully enjoy the videos via the Internet without restrictions. Netflix argued in a motion for judgment on the complaint brought by the National Association for the Deaf that it was not required to comply with the ADA and remove barriers to accessibility because its online service was not a place of public accommodation and the ADA could not be extended to individual’s homes. The court disagreed, observing that “in a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would run afoul of the purposes of the ADA.” The court fell short of requiring Netflix to provide closed captioning on all its videos because of the early stage in which the case was presented for a ruling, and reserved for future decision whether such relief would be deemed to be unduly burdensome on Netflix.

In light of the recent Netflix decision, employers, companies, and organizations providing services via the Internet in Massachusetts and beyond should examine their websites for ADA compliance, and their online services and employment application processes for accessibility. Technological accessibility solutions, such as closed captioning, may be available at a cost that is not prohibitive. Incorporating such solutions may be good for business as well as recruiting because they may increase the field of applicants, customers, and consumers which these entities are trying to reach.


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