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April 5, 2010 | M L W 3

Says online marketplacedoesn’t allow the deaf

to sell their waresB C M

Special to Missouri Lawyers Weekly

The world’s largest online marketplacebills itself as a site “where practically any-one can buy and sell practically anything.”

Melissa J. Earll, from Nevada, Mo., hassued over the idea that eBay’s “practically anyone” doesn’t include her and millionsof other deaf people.

Earll, who wanted to go on the site to sellsome rare books, filed a federal lawsuit lastmonth against eBay Inc. claiming the Website violates the American with DisabilitiesAct and California Disabled Person Act.

The lawsuit alleges the basis for the suitis “not that eBay has passively failed to ac-commodate deaf and hard of hearing per-sons.” Instead, “that eBay has gone out of its way to design a system that deaf andhard of hearing persons cannot use.”

The company released a statement aboutthe suit: “We believe that eBay’s policies andactions concerning our users are consis-tent with the Americans with DisabilitiesAct and related laws. eBay strives to equal-ly serve all of our users in an appropriate,lawful and responsible manner.”

Earll claims the Web site’s seller regis-tration system prevented her from sellingitems on eBay. It requires potential sellersto verify their identities by phone in orderto sell items on the site. Earll, who is pro-foundly deaf, claims she cannot communi-cate vocally by telephone.

eBay provides a “seller’s checklist” on itssite for all who want to register to sell items.The list states a potential seller must “con-firm your identity with an automated phonecall or by contacting customer support.”

According to the suit: Earll tried to reg-ister as an eBay seller several times sinceJune 2008 and was barred each time be-cause of the phone identification system.After a block was put on her account, shetried to use the site’s “life help” feature tofind a solution. None of the representativeswith whom she communicated provided

an accommodating solution.“She followed whatever they suggested,”

said Bill Crowe, Earll’s attorney. “Whatthey suggested didn’t work. She kept try-ing and trying and trying, and nothingever worked.”

Two of the representatives suggested shehave a hearing person answer her phone tocomplete the identification process, Earllsaid. She identifies herself as “an indepen-dent adult living alone,” and did not findthe suggestion practical.

A reporter going on the site ran into thesame roadblocks. After entering creditcard information, the would-be seller isdirected by eBay to a page to confirm theseller’s identity by phone. The page sayseBay will place an automated phone calland give a confirmation code. Once theseller gets the confirmation code, the sellercan enter it into eBay.

There is an option that says, “No thanks, verify my identity another way.” When youclick that option, it directs you back to thecredit card page.

The lawsuit alleges eBay has violatedseveral sect ions of U.S. Code 42-The PublicHealth and Welfare. The code states thatdiscrimination includes “the impositionor application of eligibility criteria thatscreen out or tend to screen out an individ-ual with a disability from fully and equally enjoying the goods, services, facilities,

privileges, advantages or accommodationsunless necessary for the provision,” and “afailure to make reasonable modifications… when such modifications are necessary to afford such goods, services, facilities,privileges, advantages or accommodationsto individuals with disabilities.”

The suit claims eBay violates the sectionsby having a seller registration system thatis not inclusive to deaf or hard-of-hearingindividuals and does not offer any accom-modations for these individuals. One sug-gested accommodation is the CAPTCHAsystem, or “Completely Automated PublicTuring test to tell Computers and HumansApart.” The system, employed by many Web sites, describes itself as “a programthat protects against bots by generatingand grading tests that humans can pass

but current computer programs cannot.”A typical test is having users identify

distorted numbers and letters.“I think something as simple as that

could take care of it. I don’t think it wouldcall for any major redesign,” Crowe said.

The lawsuit also identifies eBay as “placeof public accommodation,” as defined by U.S.C. 42, because the site, which facili-tates $60 billion in sales each year, affectscommerce and is a “place of public gather-ing,” as it is self-described as “the world’slargest marketplace.”

Earll is pursuing class action status forthe lawsuit. The class is defined as “all per-sons who are deaf or hard of hearing in theUnited States who have attempted to regis-ter as sellers with eBay and as a result havebeen prevented from doing so because of eBay’s telephone voice verification sys-tem,” and includes thousands of individu-als, according to the suit.

Crowe told Missouri Lawyers Weekly heknows of no similar lawsuit.

The plaintiff seeks a “preliminary andpermanent injunction” to prohibit eBay from violating the ADA and DPA and thatwill make it more readily available to deaf and hard-of-hearing users.

“It’s not to get a bunch of money fromeBay,” Crowe said. “She just wants to sellthings on eBay and wants to help otherpeople so situated sell things on eBay.”

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Southwest Missouri book seller sues eBay

p After being sued by a deaf Missouri woman, eBay released a statement saying it “strives to equally serve allof our users in an appropriate, lawful and responsible manner.”Bloomberg News file photo