April 5, 2010 | M i s s o u r i L aw y e r s We e k ly
Southwest Missouri book seller sues eBay
Says online marketplace
doesn’t allow the deaf
to sell their wares
By Catherine Martin
Special to Missouri Lawyers Weekly
The world’s largest online marketplace
bills itself as a site “where practically any-
one can buy and sell practically anything.”
Melissa J. Earll, from Nevada, Mo., has
sued over the idea that eBay’s “practically
anyone” doesn’t include her and millions
of other deaf people.
Earll, who wanted to go on the site to sell
some rare books, filed a federal lawsuit last
month against eBay Inc. claiming the Web
site violates the American with Disabilities
Act and California Disabled Person Act.
The lawsuit alleges the basis for the suit
is “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 and
hard of hearing persons cannot use.”
The company released a statement about
the suit: “We believe that eBay’s policies and
actions concerning our users are consis-
tent with the Americans with Disabilities
Act 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 selling
items on eBay. It requires potential sellers
to verify their identities by phone in order
to 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 its
site for all who want to register to sell items.
The list states a potential seller must “con-
firm your identity with an automated phone
call or by contacting customer support.”
According to the suit: Earll tried to reg-
ister as an eBay seller several times since
June 2008 and was barred each time be-
cause of the phone identification system.
After a block was put on her account, she
tried to use the site’s “life help” feature to
find a solution. None of the representatives
with whom she communicated provided
an accommodating solution.
“She followed whatever they suggested,”
said Bill Crowe, Earll’s attorney. “What
they suggested didn’t work. She kept try-
ing and trying and trying, and nothing
ever worked.”
Two of the representatives suggested she
have a hearing person answer her phone to
complete the identification process, Earll
said. She identifies herself as “an indepen-
dent adult living alone,” and did not find
the suggestion practical.
A reporter going on the site ran into the
same roadblocks. After entering credit
card information, the would-be seller is
directed by eBay to a page to confirm the
seller’s identity by phone. The page says
eBay will place an automated phone call
and give a confirmation code. Once the
seller gets the confirmation code, the seller
can enter it into eBay.
There is an option that says, “No thanks,
verify my identity another way.” When you
click that option, it directs you back to the
credit card page.
The lawsuit alleges eBay has violated
several sections of U.S. Code 42-The Public
Health and Welfare. The code states that
discrimination includes “the imposition
or application of eligibility criteria that
screen out or tend to screen out an individ-
ual with a disability from fully and equally
enjoying the goods, services, facilities,
3
privileges, advantages or accommodations p After being sued by a deaf Missouri woman, eBay released a statement saying it “strives to equally serve all
unless necessary for the provision,” and “a of our users in an appropriate, lawful and responsible manner.” Bloomberg News file photo
failure to make reasonable modifications
… when such modifications are necessary
to afford such goods, services, facilities,
privileges, advantages or accommodations
to individuals with disabilities.”
The suit claims eBay violates the sections
by having a seller registration system that
is not inclusive to deaf or hard-of-hearing
individuals and does not offer any accom-
modations for these individuals. One sug-
gested accommodation is the CAPTCHA
system, or “Completely Automated Public
Turing test to tell Computers and Humans
Binding
Apart.” The system, employed by many
Web sites, describes itself as “a program
that protects against bots by generating
and grading tests that humans can pass
Precedent
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 would
call for any major redesign,” Crowe said.
The lawsuit also identifies eBay as “place Profit from our long track record
of public accommodation,” as defined by
U.S.C. 42, because the site, which facili- of serving legal professionals.
tates $60 billion in sales each year, affects
commerce and is a “place of public gather-
ing,” as it is self-described as “the world’s At Country Club Bank, we’ve spent years building a portfolio of successful
largest marketplace.” partnerships with Kansas City area legal professionals. Today, we continue to offer
Earll is pursuing class action status for
all of the personal and business financial services you need to succeed, delivered
the lawsuit. The class is defined as “all per-
with the expertise that comes from experience. After all, we’ve had a lot of
sons who are deaf or hard of hearing in the
practice helping practices just like yours. Stop by or give us a call today.
United States who have attempted to regis-
ter as sellers with eBay and as a result have
816 931 4060
been prevented from doing so because of
eBay’s telephone voice verification sys-
tem,” and includes thousands of individu- www.countryclubbank.com
als, according to the suit.
Crowe told Missouri Lawyers Weekly he
knows of no similar lawsuit.
The plaintiff seeks a “preliminary and
permanent injunction” to prohibit eBay
from violating the ADA and DPA and that
will make it more readily available to deaf Member FDIC
and hard-of-hearing users. Where roots run deep, relationships grow strong.
“It’s not to get a bunch of money from
eBay,” Crowe said. “She just wants to sell
things on eBay and wants to help other PLAZA | TRAFFICWAY | DOWNTOWN | VILLAGE WEST | SHAWNEE | PRAIRIE VILLAGE | MISSION HILLS | HALLBROOK | PARKWAY PLAZA
people so situated sell things on eBay.” /1