Eleventh Circuit Reverses Website Accessibility Decision (and Congress Considers Action)

Kelley Drye & Warren LLP

In recent years, plaintiffs’ attorneys have found that filing website accessibility cases can be a lucrative business model. By doing a quick scan of a website and then copying and pasting from other complaints, these attorneys can file a complaint with minimal effort. Because the legal requirements in this area are murky and settling is cheaper than litigating, these attorneys can often get a quick settlement. As a result, there have been thousands of these lawsuits, many of which have been filed in Florida.

Florida has been attractive venue for website accessibility cases since a 2017 decision held that Winn Dixie’s website violated the ADA because the website was not easily accessible to blind visitors. The key issue in that case (and other website accessibility cases) is whether websites are places of public accommodation under the ADA. In Winn-Dixie, the court held that the ADA applied because Winn-Dixie’s website was heavily integrated with its physical stores (which are places of public accommodation under the ADA) and the website operated as a gateway for its physical stores.

On April 7, 2021, a split Eleventh Circuit panel reversed that decision. The majority noted that the ADA specifically describes 12 tangible and physical types of locations that fall within the definition of a public accommodation. It opined that “[n]o intangible places or spaces, such as websites, are listed” In the statute. The majority  concluded that “pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places.” Thus, “websites are not a place of public accommodation under Title III of the ADA.”

Although the majority recognized that a website that is not accessible could pose a significant inconvenience to a blind consumer, it noted that addressing this problem is “a project best left to Congress.” Congress may already be working on that project. In an effort to add some clarity to this area and to slow the tide of frivolous lawsuits in this area, two representatives introduced the Online Accessibility Act last year. Although the bill wasn’t passed, it has now been reintroduced in the 117th Congress.

The Act would specifically bring websites under the scope of the ADA and require “substantial compliance” with the Web Content Accessibility Guidelines 2.0 Level A and Level AA standards that have been incorporated in many settlements. What constitutes “substantial compliance” would be the subject of further regulations. These regulations would be critical, as there is currently no clear standard as to what constitutes compliance – something that has worked to the advantage of plaintiff’s attorneys.

The Act would also impose various requirements on potential plaintiffs. They would not be permitted to file a lawsuit unless: they first provide a notice to the website owner of alleged non-compliance, wait 90 days to allow the owner to remediate the site, and then file a complaint with the DOJ. A plaintiff could only file a lawsuit if the Attorney General declined to bring a civil enforcement action.

It’s too early to say whether the Online Accessibility Act will pass or whether other courts will take the Eleventh Circuit’s lead on this issue. But these developments may at least hold some hope for companies that have been plagued by these lawsuits, even after investing significant time and effort to make their websites easier for blind consumers to use.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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