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Nexus

I am not a lawyer, and this is not legal advice.

In United States digital accessibility case law, nexus is a strong connection between a digital experience such as a website or mobile app and the goods and services offered by a physical, brick-and-mortar public accommodation. Nexus is a test that American courts commonly use when determining whether businesses’ sites or apps are legally required to be accessible.

For most private businesses in the United States, the closest thing we have to a digital accessibility law is the Americans with Disabilities Act (ADA) — in particular, the ADA’s Title III, which lays out accessibility rules for public accommodations (specifically and significantly, for the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation). Enacted in 1990 (but amended in 2008), the ADA’s Title III does not directly mention digital services. It does not even truly define public accommodation, except to provide a list of representative examples.

This means that courts have had to weigh in on whether websites and apps count as public accommodations for the purpose of the law. Courts disagree on this matter, and their opinions generally fall into three camps:

  1. Sites and apps must be public accommodations, since it would be absurd to expect that Congress intended for businesses to be prohibited from discriminating against disabled people in person, but totally allowed to get away with it virtually.
  2. Sites and apps can’t be public accommodations, since the law calls out places of public accommodation, and digital services aren’t places.
  3. Sites and apps can be extensions of public accommodations, since, while yes, the law calls out places of public accommodation, the important thing is that the law requires access to the goods and services of those places of public accommodation, and inaccessible digital services could hinder someone’s access to those goods and services.

That third opinion is the most common one for courts to hold. For these courts, then, disabled plaintiffs would need to prove that there is a strong connection between a business’s website or application and the goods and services offered at a physical, brick-and-mortar establishment — in other words, that there is nexus between the two.

A strong, clear example of the nexus test could be grocery stores which allow you to place orders online for pickup. Pickup orders are a service of a place of public accommodation, but an inaccessible site or app could prevent a disabled user (including arguably many of the people who could benefit most from a pickup order service) from taking full advantage of the service.

In many cases, the site or app could just be one way out of several to access the goods and services, and yet courts might hold that nexus applies. For instance, the Ninth Circuit Court of Appeals held that Domino’s Pizza was required to make their site accessible, even though ostensibly many would-be customers could place orders in person or over the phone instead. The website was just one means of several for placing orders, and yet, because it provided an avenue to the goods and services of Domino’s brick-and-mortar locations, the Ninth Circuit Court of Appeals held that there was sufficient nexus.

On the other hand, courts that require nexus generally won’t rule that digital services without customer-facing brick-and-mortar establishments need to be accessible.

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