"Let's Get 'Phygital'": How the Collision of Physical and Digital Commerce Compels the End of the Nexus Standard in ADA Adjudication

Abstract

As COVID-19 rapidly spread across the globe in early 2020, nations closed their borders and ordered citizens to stay at home to minimize the virus's spread. As a result of these stay-at-home orders, businesses shifted online or hybridized physical and digital ("phygital") operations to survive. While online shopping, or e-commerce, was prevalent pre-pandemic, this new necessity to obtain goods and services via websites exacerbated existing accessibility challenges for many disabled individuals. Some of these individuals filed website accessibility lawsuits under Title III of the Americans with Disabilities Act, relying on the nexus standard (which extends Title III coverage to websites that have a significant connection to a physical place) to enforce compliance. This Note proposes that phygital commerce, necessary since the start of the pandemic, will prevail post-pandemic and makes the nexus standard illusory, particularly as physical places shift to serve native digital businesses that originated online. This Note further recommends eliminating the nexus standard to prevent confusing and inconsistent results in its application and encourages Congress to reconsider formally addressing websites and other nonphysical places in Title III.