Compliance with the Americans with Disabilities Act (ADA) is one of the new challenges facing website designers and corporate counsel. The Internet is primarily a visual medium (mp3s and smell-o-vision excepted), and although "screen readers" are used to translate online text into sounds for the visually impaired, many commercial websites contain design and functional elements that do not easily translate into words. Consider a fillable form or pulldown menus for making a reservation on a specific day and time. How can a complex website, such as a travel accommodations site, be fully ADA compliant? Should there be a newly created ADA exemption for airline reservation sections?

These are the interesting issues that could've been discussed in Access Now, Inc. v. Southwest Airlines, Co. Unfortunately, however, plaintiff's pleadings did not specifically articulate a Title III ADA claim to the Eleventh Circuit's satisfaction.

Instead of an opinion that discusses Southwest.com's "unlabeled graphics, inadequately labeled data tables, online forms inaccessible to the blind, and lack of a 'skip navigation link'," we have a decision about the nexus requirements and procedural differences between a "virtual" and "concrete" location under the ADA. As the Eleventh Circuit's Judge Marcus states: "Our problem on appeal is that the new argument depends on critical facts (and a new theory) neither alleged in the complaint nor otherwise presented to the district court."

At this late stage in the proceedings, it is uncertain whether plaintiffs can find a way to amend their pleadings. [sigh]

Read more on the ADA in Cyberspace.