Surfing the “Interwebs” May Not Be a Public Accommodation Issue Under the ADA, According to 11th Circuit

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In a long-awaited opinion, the Eleventh Circuit held that websites are not places of public accommodation for purposes of the Americans with Disabilities Act (ADA). When employers think of the ADA, the first thing that likely comes to mind is that it’s the law that prohibits employment discrimination on the basis of disability. But the ADA also prohibits denying individuals with disabilities the “full and equal enjoyment” of “places of public accommodation.” Whether a business’s website is a “place of public accommodation” is up for debate among the courts, but this Eleventh Circuit ruling sheds some business-friendly light on a lawsuit trend that has been recently popular.

Websites as Public Accommodations?

The ADA prohibits discrimination against individuals with disabilities. It governs the workplace (Title I), public entities (Title II), and, relevant here, places of public accommodation (Title III), such as hotels, restaurants, and stores.  Businesses cannot deny individuals with disabilities “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” This includes when a place of public accommodation “fail[s] to take such steps as may be necessary to ensure that no individual with a disability is excluded . . . because of the absence of auxiliary aids and services.”

How do you know if your business is a “place of public accommodation”? The ADA lists several examples, all of which are physical locations. However, in the last few years, there have been lawsuits filed across the country claiming that businesses’ websites are not accessible to people with disabilities and arguing that websites, like physical business locations, are places of public accommodation. Most commonly, a blind or otherwise visually impaired individual will file suit against a business alleging the website does not use software that is compatible with the individual’s screen reading software, which allows him or her to search the web.

The First, Second, and Seventh Circuit Courts have held that websites are considered places of public accommodation, reasoning that in the modern era they provide services or sell goods in the same way that brick-and-mortar locations do. This is commonly referred to as the “nexus standard.” The general idea is that a website with a “nexus” to a physical location, such as the ability to order goods or to communicate with a sales associate, provides the same goods, services, privileges, and advantages as a brick-and-mortar store. These courts reason that websites should be considered places of public accommodation, just like a real store, to afford plaintiffs the same protection they would have if they were denied access to the business’s physical location.

The appellate courts do not agree on this issue. The Third, Sixth, and Ninth Circuits have held that websites themselves are not public places of accommodation. The Eleventh Circuit has joined this side of the argument.

The Eleventh Circuit – Gil v. Winn-Dixie Stores, Inc.

In Gil v. Winn-Dixie Stores, Inc., the lower court held that, although websites may not be public accommodations per se, Winn-Dixie’s website was a place of public accommodation because the website was “heavily integrated” with the physical stores. The Eleventh Circuit saw it differently:

  • The court focused on the language of the ADA, which lists 12 examples of places of public accommodation, including restaurants, parks, museums, hotels, movie theaters, lecture halls, and grocery stores. The court observed that this “expansive list of physical locations” notably “does not include websites.” The court emphasized that such “unambiguous and clear” statutory language should be interpreted according to the “plain language.”
  • Although the court recognized the disadvantages individuals with disabilities may face if businesses’ websites are inaccessible to them, it held that this is “a project best left to Congress.” Until then, plain language rules.
  • In response to the plaintiff’s argument that the website constituted an “intangible barrier” to accessing goods and services in the physical store, the court disagreed: The website had a limited use and was not the customer’s sole point of access to the business’s goods and services offered in the stores; the plaintiff had successfully shopped at the physical store on many occasions; and, most importantly, no purchases could be made online. In making this determination, the court distinguished this case from a prior decision in Rendon v. Valleycrest Productions. In Rendon, the business’s only point of customer contact was through an automated hotline, so the plaintiff, who was deaf, could not use the hotline because it did not incorporate technology that allowed deaf individuals to communicate via text. The Eleventh Circuit held that this created an “intangible barrier” to the business’s services and thus violated the ADA. In Winn-Dixie, the court noted Rendon’s critical fact was missing: Winn-Dixie’s website was not “the sole access point for individuals” to enjoy the privileges of the business.

Takeaways

While this likely won’t be the last we hear of this issue from the Eleventh Circuit and others, it gives businesses powerful arguments against requiring all websites to be ADA compliant. The opinion still leaves open the question of whether a business that conducts business solely, or even primarily, through its website will have to comply with the ADA. In the meantime, businesses can rest a little easier knowing that websites are not per se places of public accommodation, at least in the Eleventh Circuit. Until this issue is resolved in the Supreme Court or by Congress, cautious businesses with websites should consider taking steps to make their websites more accessible.

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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