BARKETT, Circuit Judge:
Sergio Rendon, JohnPaul Jebian, Chris Leone, JoAnn M. Norris, and Kelly Greene ("Plaintiffs"), appeal the dismissal of their Title III class action complaint, brought on behalf of themselves and similarly situated hearing-impaired and mobility-impaired individuals. The complaint alleges that Valleycrest Productions Limited ("Valleycrest") and the American Broadcasting Network, Inc. ("ABC") (collectively "Defendants") violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., by operating a telephone selection process that screened out disabled individuals who wished to be contestants on the show "Who Wants To Be A Millionaire" ("Millionaire"). The district court dismissed Plaintiffs' complaint upon finding that, because the automated telephone contestant selection process was not conducted at a physical location, it was not a place of "public accommodation" under the ADA. Plaintiffs now appeal. For the reasons discussed below, we conclude that Plaintiffs state a valid Title III claim in alleging that the contestant hotline was a discriminatory procedure that screened out disabled persons aspiring to compete on Millionaire, a place of public accommodation. We therefore REVERSE and remand.
ABC and Valleycrest produce the television quiz show Millionaire. The program is filmed at ABC's New York City production studio, and contestants are selected for appearance on the program via an automated telephone answering system. Aspiring contestants call a toll-free number on which a recorded message prompts them to answer a series of questions. Callers record their answers to these questions by pressing the appropriate keys on their telephone keypads. Callers who answer all of the questions correctly in the first round of the competition (the "fast finger process") are then subject to a random drawing to narrow the contestant field, and the selected individuals proceed to the second round, in which they are required to answer additional trivia questions. Of the approximately 240,000 persons who call the contestant hotline each day to compete on Millionaire, only 6% proceed to the second round.
In this case, the named plaintiffs are persons with hearing and upper-body mobility impairments who sought selection to compete on Millionaire by calling the automated hotline, but who could not register their entries, either because they were deaf and could not hear the questions on the automated system, or because they could not move their fingers rapidly
Plaintiffs filed a class action complaint alleging that Valleycrest and ABC were in violation of the ADA because the telephone contestant selection process for Millionaire tended to screen out hearing-impaired or upper-body mobility-impaired persons. Plaintiffs allege that they can be reasonably accommodated through the use of several well established technological devices, such as TDD services, which would permit them to participate in the existing fast finger competition.
Defendants moved to dismiss Plaintiffs' complaint, arguing that the Title III requirements did not apply to the contestant hotline because the protections of Title III are limited to physical locations; that is, they guarantee the disabled fair access only to privileges and services that are offered from a physical "public accommodation."
The district court granted the motion to dismiss, holding that Title III is inapplicable to the defendants' automated telephone system of selecting contestants to participate on the Show because the system is not administered at a palpable public accommodation. This appeal followed, with the Department of Justice intervening and joining Plaintiffs' argument that Title III precludes the sort of screening mechanism used to select Millionaire contestants.
We review de novo the dismissal of a complaint for failure to state a claim, construing all allegations in the complaint as true and in the light most favorable to the
42 U.S.C. § 12182(a) outlines Title III's purpose in general terms, providing that
The statute in turn lists those entities regulated under the statute as places of "public accommodation," explaining that an entity is covered if its operations "affect commerce," and it falls within one of twelve enumerated categories. 42 U.S.C. § 12181(7)(A)-(L).
The ADA also precisely defines the term "discrimination" in section 12182(b)(2)(A)(i), which, inter alia, prohibits
Our inquiry is confined solely to the district court's bases for dismissing the plaintiffs' complaint for failure to state a claim. At this juncture, on the record before us, this case does not involve issues regarding the reasonableness of any proposed accommodations, or require us to resolve whether any proposed accommodations or auxiliary services would constitute an "undue burden" to the Millionaire program. See 42 U.S.C. § 12182(b)(2)(A)(iii). Rather, this appeal involves only the question of whether Title III encompasses a claim involving telephonic procedures that, in this case, tend to screen out disabled persons from participation in a competition held in a tangible public accommodation. Under a plain reading of the foregoing
Plaintiffs' complaint clearly makes the requisite allegations,
Having conceded nearly all of the requisite elements of a valid Title III claim, Defendants nonetheless contend that they are entitled to dismissal because Plaintiffs have failed to assert that Defendants erected "barriers to the entry of disabled persons into the auditoriums or studios in which the Show is recorded." Br. of Appellee at 9. As we understand their contention, Defendants argue that the Millionaire contestant hotline may not serve as the basis for a Title III claim because it is not itself a public accommodation or a physical barrier to entry erected at a public accommodation.
We find this argument entirely unpersuasive. A reading of the plain and unambiguous
In support of their assertion to the contrary, Defendants rely primarily on Stoutenborough v. Nat'l Football League, Inc., 59 F.3d 580 (6th Cir.1995), in which a group of hearing-impaired plaintiffs sued the NFL and the Cleveland Browns football team seeking to eliminate a so-called "blackout rule" that prohibited live video broadcasts of football games that were not sold out. The Stoutenborough plaintiffs argued that, because they were unable to hear the broadcasts of the games offered on the radio, the "blackout rule" effectively deprived them of the opportunity to enjoy a live broadcast of the games, while hearing persons could enjoy them. The plaintiffs sought a court order to compel the NFL and the Browns to broadcast all live games on television.
The Sixth Circuit upheld the district court's dismissal of the suit, citing two reasons. First, the Court determined that the blackout rule was not discriminatory, because it applied equally to the hearing and the hearing-impaired; both groups were precluded from viewing blacked-out home football games. Id. at 582. The mere fact that hearing persons could listen to the games on the radio was insignificant, since the rule did not attempt to regulate radio broadcast. Id. Second, the Court held that the televised broadcast of football games was not offered by the defendants as a service of a public accommodation. The Court observed that, although the defendants were in fact lessors of a stadium (a public accommodation), the broadcasts at issue were not services of that public accommodation. Id. at 583. Because the NFL, member clubs and media defendants did not otherwise fall within any of the twelve "public accommodation" categories identified in 42 U.S.C. § 12181(7), the plaintiffs had failed to state a Title III claim. Id.
Stoutenborough is not analogous to the present case. Defendants rely on language in Stoutenborough that suggests video broadcasts are not covered under Title III because they are not a "service" that defendant entities operate from a "place" of "public accommodation," id. at 583, but this language is irrelevant to the question we face here. The Stoutenborough court held as it did because it found that the broadcast of games was not a service of the football stadium — the only identifiable "public accommodation" under the ADA in that suit. Plaintiffs in the present case, however, are not suing merely to observe a television show; rather, they seek the privilege of competing in a contest held in a concrete space, a contest they have been screened out of because of their disabilities.
To contend that Title III allows discriminatory screening as long as it is off site requires not only misreading the relevant statutory language, but also contradicting numerous judicial opinions that have considered comparable suits dealing with discrimination perpetrated "at a distance." For cases arising under the ADA, see, e.g., Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir.1998) (hearing-disabled plaintiffs' ADA Title II challenge to 9-1-1 emergency response system that lacked TDD capacity
In light of the foregoing, we conclude that Plaintiffs have stated a valid claim under Title III by alleging that the fast finger telephone selection process is a discriminatory screening mechanism, policy or procedure, which deprives them of the opportunity to compete for the privilege of being a contestant on the Millionaire program. Therefore, we REVERSE the district court and remand for further proceedings consistent with this opinion.
We need not address this issue for the purposes of this appeal because we determine that the district court erred by granting Defendants' motion to dismiss the first amended complaint, and because we find that in all pertinent respects the allegations stated in the second amended complaint were also contained in the first amended complaint.
42 U.S.C. § 12182(b)(2)(A)(ii)-(iii).
These cases indicate that, to the extent that a plaintiff intends to raise a claim of disability discrimination based on the kind of insurance offered, the plaintiff must demonstrate that the policy was offered to the plaintiff directly by the insurance company and was connected with its offices, as opposed to its being a privilege provided by the plaintiff's employer.
These cases are as inapposite as is Stoutenborough, supra; they do not stand for the broad proposition that a place of public accommodation may exclude persons with disabilities from services or privileges performed within the premises of the public accommodation so long as the discrimination itself occurs off site or over the telephone. At most, they can be read to require a nexus between the challenged service and the premises of the public accommodation. That nexus is surely present here; Plaintiffs seek access to privileges provided in Defendants' theater. None of the insurance cases countenance, for example, refusal to let individuals in wheelchairs buy insurance policies so long as the company does so by declining to make telephone appointments with disabled customers.
42 U.S.C. § 12132.