Bill would expand anti-discrimination protections to digital sphere

In the 1960s and ‘70s, equal rights protesters fought for public accommodations laws anti-discrimination statutes that now protect individuals from discrimination based on race, color, religion, national origin, disability, sexual orientation, sex, gender identity or gender expression in public spaces, including most businesses.

But in Nevada and many other states, those protections do not explicitly extend to the digital realm. During a Senate Commerce and Labor Committee meeting on Monday, Assemblyman Howard Watts (D-Las Vegas) said he is looking to change that with AB207, a bill clarifying that Nevada's public accommodations law also applies to e-commerce. 

"AB207 aims to cross the digital divide and level the playing field so that all businesses operating in this state are open to all Nevadans," Watts said during the hearing.

The bill expands the definition of "place of public accommodation" to include any online business that offers goods or services to the general public in Nevada through an electronic medium or website, and is not operated from a physical establishment in the state. It specifies that the provisions do not apply to a private online discussion forum or any other online establishment not open to the public. The bill passed out of the Assembly on a party-line 26-16 vote on April 20.

David Brody, an attorney and head of the Digital Justice Initiative at the Lawyers Committee for Civil Rights Under the Law, co-presented the bill along with Watts. Brody said that public accommodations laws were a vital mechanism to end Jim Crow segregation and typically prohibit businesses from denying services, charging higher prices, or harassing individuals based on specific personal characteristics.

"Today, if a business posts a sign that says whites only, it should not matter whether it's written in ink or pixels. The discrimination is the same, the harm is the same," Brody said. "Under Nevada law, the legal consequences should be the same."

Despite recent civil rights advancements, Brody said retail websites often charge different prices based on user demographics. Predatory for-profit colleges frequently target communities of color, and algorithms that set car insurance rates typically offer higher premiums for those living in neighborhoods of color than they do for those in white neighborhoods with the same risk levels, Brody said.

"AB207 seeks to amend the state's public accommodation statute to ensure that Nevadans receive the same protections against discrimination from billion-dollar websites that they do in a mom-and-pop corner store," Brody said.

But Sen. Keith Pickard (R-Henderson) said Nevada already has laws that expressly prohibit discrimination in all forms. He worried that the bill would open businesses to lawsuits related to Americans with Disabilities Act (ADA) compliance for a font that was too small or colors that do not accommodate colorblind individuals.

"This bill is going to be a trial lawyer’s dream," Pickard said. "I'm thinking, man, if I were still in injury law, I could sue nearly every internet site that I encounter."

Watts responded that an amendment on the bill clarifies that it will not place additional requirements on business owners already operating a brick-and-mortar business in the state. He added that the ADA is a federal law, and no state action will make a difference in how that law may be applied to website accessibility.

As for what gap the law addresses, Watts said existing law is silent on activities in the digital sphere, and without the legislation, court cases and trials would have to set a precedent.

"We're just making sure that, again, that online business that operates 100 percent online in offering their services is held to the same standards as a brick-and-mortar brick business offering the same goods or services," Watts said.

If the law passes, Nevada will join five other states that explicitly apply public accommodations laws to the internet, including California, Colorado, Oregon and New Mexico.

Editor’s Note: This story first appeared in Behind the Bar, The Nevada Independent’s newsletter dedicated to comprehensive coverage of the 2021 Legislature. Sign up for the newsletter here.