Little did auction enthusiast Melissa Earll know that when she chose eBay to sell her collectible items, she would be picking her future court opponent. Several factors went into her decision to pick the popular and well-known site, including its size, familiarity, and International market. The Nevada, Missouri resident was trying to buy a house and thought that by selling her books and collectibles, she could earn enough extra money to earn a down payment.

But eBay's identity verification process requires the would-be seller to verify her identity over the phone, and Earll is profoundly deaf. As the press release states, "eBay requires those registering to sell items to be called over the phone, listen to auditory PINs, and then enter those PINs online to verify those identities. Despite Ms. Earll's numerous attempts to explain her hearing issue to the company over email and online chat support asking for an alternate method to authorize her account, eBay refused to accommodate her."

Her attorney, Jay Edelson of Edelson McGuire in Chicago (who previously won a $30 million settlement over the Thomas the Tank lead paint toy) is quoted in the press release as saying, "At one point, eBay even suggested that she just find someone who can hear normally to answer her phone for her." Earll found this insulting, "Seeing as how I am a 43-year-old adult woman who is fully independent and capable of many things...just not answering/hearing a darn telephone call."

Earll says that eBay treated her like she was a child. "I was insulted, I was offended, and I was humiliated. In my opinion, a company as internationally recognized and as big and profitable as eBay should have known better than to treat me like I was treated. The fact is eBay's a registered company inside the United States and is obligated to abide by all federal and state laws, including the ADA. The sad reality of this entire matter is that what happened to me with eBay isn't an isolated incident; it wasn't anything out of the ordinary for me. I mean, what deaf person hasn't encountered a company or business with communication barriers that were difficult to circumvent and prevented their full and equitable participation? What deaf person hasn't encountered a business owner who proved to be unresponsive or insensitive to their request for assistance, much less accommodation? What deaf person hasn't faced an impediment that subjected them to embarrassment?"

On March 16, Earll filed a class action lawsuit against eBay (Earll v. eBay). Despite making billions of dollars annually, eBay has not implemented a system that allows deaf or hard of hearing persons to register as sellers. The complaint says that eBay's verification system is needlessly discriminatory. By creating a seller registration system that solely utilizes sound, eBay has erected a barrier to its website that screens out deaf and hard of hearing persons. It also says, "What makes eBay's discriminatory conduct all the more galling is that solutions to this problem are easy and inexpensive to implement - solutions being used by thousands of companies online. eBay simply needs to implement a seller registration system that utilizes PINs presented visually and aurally. One example is the CAPTCHA method used by countless websites. This is the method by which website users are required to visually decipher obscured letters and numbers."

Earll's other lawyer, Michael Aschenbrener, expects that the lawsuit will result in deaf/HOH users being able to become sellers on eBay. "Furthermore, we expect that eBay will not only fix the problem, but also clearly demonstrate that it respects the rights of the deaf community," he says.

ADA experts' claim that it is difficult to argue an ADA violation with a business like eBay because the ADA was enacted before the prevalence of the Internet and its discrimination provisions address places. Case law has been virtually unanimous that entities that have no place open to the public are not covered by the ADA, although those with both a place open to the public and an Internet presence are covered. "The case law isn't unanimous that the ADA requires a brick-and-mortar presence, but I acknowledge some courts have determined it does," says Aschenbrener. "Regardless, I don't expect it will come to that; I expect eBay will do what's right and fix this. But if eBay fails to fix the problem and litigates the case, we'll be fully prepared with winning arguments. The purpose of the ADA is to protect the rights of disabled persons. The fact that it was enacted before the dawn of e-commerce is beside the point. I have no doubt that we'll prevail, if it comes to that."

Since Earll filed her lawsuit, her actions and motivations have been questioned. "Not only have I been ridiculed, my personal integrity has been criticized," she says. "And for what? For standing up for what I believe is the right thing to do? For standing up for my rights? For being angry that this year marks the 20th anniversary of the passage of the ADA and this kind of behavior and these kinds of exclusionary practices are still happening? Because I think eBay should be ashamed of itself for perpetuating these sorts of discriminatory practices?"

Earll has even been verbally attacked - in person to her face as well as anonymously over the Internet. She has been accused of faking her deafness and even being "sue-happy" against businesses, even though this is the very first lawsuit she has ever filed against a business for violating her civil rights under the ADA. She has been accused of not having anything to do with the deaf community, even though there is no deaf community where she lives.

Ultimately, she just wants to see right prevail: "While I recognize the necessity for websites like eBay's to enact appropriate fraud prevention protocol that serve to protect both buyers and sellers alike, I cannot stress enough how vitally important it is that there always be pathways of inclusion rather than barriers of exclusion to all people with disabilities."

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