Deaf Web User Loses Discrimination Case Against eBay

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A federal judge has slammed the courthouse door shut on a deaf Web user who filed a discrimination lawsuit against eBay.

Missouri resident Melissa Earll argued that eBay's merchant verification policy, which she said requires sellers to use a telephone to confirm their identities, made it impossible for her to sell goods on the service. She argued that eBay was violating the federal Americans with Disabilities Act as well as California's Unruh Act -- a civil rights law that prohibits intentional discrimination.

Late last month, U.S. District Court Judge Edward Davila dismissed Earll's claims regarding the Unruh Act. He ruled that Earll's allegations didn't amount to intentional discrimination because eBay's telephone policy was "facially neutral" -- even though it allegedly had a disparate impact on her. 

Davila had earlier dismissed Earll's ADA claims on the theory that the federal law doesn't apply to online companies like eBay. The 1990 statute, which prohibits discrimination against people with disabilities, says it applies to "places of public accommodation."

The rulings likely mean that Earll's only hope of proceeding with her case against eBay is to convince an appellate court to side with her. Her lawyer, Michael Aschenbrener of San Francisco, says that he and Earll are still evaluating their options and "will make a decision on any potential appeal very shortly."

He adds: "The idea that disabled persons should not have the same rights to the Internet as non-disabled persons is absurd and offensive."

The case dates to 2010, when Earll alleged in a potential class-action lawsuit that she was unable to register as a seller with eBay because of its verification procedures. She said that eBay gives prospective merchants passwords over the telephone; those passwords must then be entered online. Earll, who said she couldn't follow those procedures because she is "profoundly deaf," alleged that she spent months asking eBay for an alternative verification system.

Many other judges have said that the ADA doesn't cover businesses that lack brick-and-mortar storefronts. But one federal judge recently came to the opposite conclusion in a lawsuit against Netflix. In that case, U.S. District Court Judge Michael Ponsor in Massachusetts allowed the National Association of the Deaf to proceed with charges that Netflix discriminates by failing to provide closed captioning online. Ponsor specifically rejected Netflix's argument that its online video service isn't a "place of public accommodation" under the ADA.

Netflix settled the lawsuit in October by agreeing to offer closed captioning on streaming video.

Tags: legal, web sites
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4 comments about "Deaf Web User Loses Discrimination Case Against eBay".
  1. Kat Brockway from NA , January 3, 2013 at 2:54 a.m.
    I cannot believe this. Neutral? It is even not Deaf friendly. I had hard time for MONTHS too. I couldn't even get interpreter to catch the code. I had hard time. I had to go through all process. Even the staff stretched their heads trying to help me. eBay company can't even figure out how to help me. They sad it is automated system and cannot set manually up for e. I had to go higher level and eventually, I gave up. I wanted sell my stuff. eBay was preventing me an opportunity to do that. Judge gave out a nonsense decision. eBay could have found a solution while that automated system is not Deaf friendly.
  2. John Grono from GAP Research , January 3, 2013 at 8:19 a.m.
    It's simply unbelievable that a technology company can't come up with a more advanced validation method than a phone call. Even SMSing the code would (a la most banks here in Australia) should be simple to implement. It's about as unbelievable as the judge's decision.
  3. Paula Lynn from Who Else Unlimited , January 3, 2013 at 9:37 a.m.
    My sister speaks with a deaf person over the phone. Hers is a regular cell phone; the other person has a speech to written phone proved to that person by the communications company. Ebay should let the deaf person know that there are availabilities and be kind to tell them about a couple. The cost to Ebay for that information is pretty close to Bubkas.
  4. Steve Gregory from Residential Leasing, LLC , January 5, 2013 at 11:33 a.m.
    I had considered filing a lawsuit like this myself ... thank you for this helpful article. I hope the lady wins her appeal.