• by Wendy Davis  @wendyndavis, April 30, 2013

A deaf Web user who unsuccessfully attempted to sell used books on eBay is asking a federal appellate court to revive her discrimination lawsuit against the online auction site.

Missouri resident Melissa Earll argues that eBay's policy of requiring sellers to use a telephone to confirm their identities made it impossible for her to sell goods on the service. She contends that eBay's policy violates the federal Americans with Disabilities Act as well as California's anti-discrimination laws.

A federal district court judge in northern California dismissed Earll's claims last year, ruling that the federal Americans with Disabilities Act 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 judge interpreted “places” to mean physical spaces, like brick-and-mortar stores, and not online sites.

Earll is now asking the 9th Circuit to revive her case. She argues in her legal papers that limiting the ADA to “physical structures” would leave disabled people without protection from discrimination. That's not the result that Congress intended, she argues.

“Like the telephone before it, the Internet now plays a 'vital role' in the lives of Americans, both disabled and non-disabled,” she argues in papers filed last week with the 9th Circuit Court of Appeals. “Giving effect to the intent of Congress requires this Court to interpret [the ADA] to include websites as places of public accommodations.”

She adds that even if Congress didn't predict the importance of the Internet in 1990, lawmakers expected “that the ADA would be applied to new and emerging technologies.”

The litigation dates to 2010, when Earll said 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 provides would-be merchants with passwords via the telephone; those passwords must then be entered online. Earll, who couldn't follow those procedures because she is "profoundly deaf," spent months asking eBay for an alternative verification system, according to her legal papers.

Earll originally wanted to sell used books, baseball cards and other memorabilia on eBay's platform, says her lawyer, Michael Aschenbrener. After she couldn't register, she sold some items through local services and flea markets near her home in rural Missouri, according to Aschenbrener. But Earll believes she would have sold the items for more money had she been able to use eBay's service, Aschenbrener says.

He adds that eBay could have authenticated Earll's identity using a text messaging service instead of voice.

Aschenbrener says that Earll still wants to register on eBay, but also wants to set a precedent that would protect others. “Disabled people have just as much right to use the Internet as everybody," he says.

A federal judge in Massachusetts recently ruled that the ADA applies to Netflix. In that case, U.S. District Court Judge Michael Ponsor allowed the National Association of the Deaf to proceed with claims 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 last year by agreeing to offer closed captioning on streaming video.

But many other judges have come to the opposite conclusion and ruled that the ADA doesn't apply to businesses that lack brick-and-mortar storefronts.

For its part, eBay said it "strives to provide all users, including those with special access needs, with the best customer experiences possible." The company adds that it is "committed to building a marketplace that is accessible and creates opportunities for people of all abilities."