In a decision that creates new hurdles for website accessibility lawsuits under the Americans with Disabilities Act (ADA), on April 7, 2021, the US Court of Appeals for the Eleventh Circuit ruled that websites do not constitute places of public accommodation under Title III of the ADA. Moreover, to violate Title III an inaccessible website must create an “intangible barrier” to a disabled individual’s actual ability to access and enjoy equally the goods and services of a physical place of public accommodation. Gil v. Winn-Dixie Stores, Inc., 17-13467 (11th Cir. April 7, 2021), takes a narrow view of the applicability of the ADA that is likely to have a significant impact on the viability of website accessibility lawsuits in the Eleventh Circuit. The decision also further highlights a split among the circuits regarding the applicability of Title III to websites and invites the United States Supreme Court to resolve the conflict.
Title III of the ADA, enacted in 1990, prohibits discrimination against individuals with disabilities, including those who are blind and vision impaired, in places of public accommodation:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.
42 U.S.C. § 12182(a). Although Title III of the ADA does not provide civil penalties for violations of the ADA, it does permit private rights of action and allows individuals to bring enforcement actions, seek injunctive relief and recover costs and attorney’s fees. 42 U.S.C. § 12188.
As originally enacted over 30 years ago, the ADA did not expressly include websites as places of “public accommodation,” principally because the internet was in its infancy at the time. Over the past several decades, however, as the internet has become ubiquitous and a seemingly unlimited number of goods and services have been made available online, courts have interpreted places of “public accommodation” to include websites.
The extent to which Title III applies to websites has varied among courts, resulting in a Circuit split regarding whether a website must have a nexus with a “physical place of public accommodation” to fall within the scope of the ADA. The First, Second and Seventh Circuits have found that websites constitute a place of public accommodation regardless of their connection to a physical location, while the Third, Sixth and Ninth Circuits have found that a nexus to a physical location is required. As discussed more fully below, the Eleventh Circuit’s decision in Gil constitutes a new interpretation, finding, as the Third, Sixth and Ninth Circuits have, that a standalone website is not a “place of public accommodation” under Title III, but also expressly rejecting any “nexus standard” based on the website’s integration with a physical store.
The District (Trial) Court proceedings:
As discussed in previous Legal Alerts, plaintiff Juan Carlos Gil, originally filed a lawsuit against the Winn-Dixie grocery store chain on behalf of himself and other blind or visually impaired individuals, alleging that Winn-Dixie violated Title III of the ADA because its website was inaccessible to blind and visually impaired individuals, preventing them from, among other things, downloading coupons, refilling prescriptions or finding Winn-Dixie store locations. Following a three-day bench trial, on June 13, 2017, the US District Court for the Southern District of Florida issued a verdict finding Winn-Dixie’s website violated Title III of the ADA. Civ Act No. 16-23020 (S.D. Fla. June 13, 2017). The court did not rule on whether Winn-Dixie’s website is a place of public accommodation, but, rather, found that because the website was “heavily integrated” with Winn-Dixie’s physical stores, the website’s inaccessibility to visually impaired individuals deprived them of the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of” Winn-Dixie’s stores in violation of the ADA. Id. at 1349 (quoting 42 U.S.C. § 12182(a)). A three-year injunction was imposed against Winn-Dixie, including mandatory updates to Winn-Dixie’s website, and plaintiff was awarded attorneys’ fees and costs. Winn-Dixie timely appealed.
Eleventh Circuit (Appellate) decision:
On appeal, a three-judge panel of the Eleventh Circuit found (1) Winn-Dixie did not violate the ADA because its website (and websites generally) is not a place of public accommodation, and (2) the website did not pose an “intangible barrier” to plaintiff’s access to the goods, services, privilege’s, or advantages of Winn Dixie’s physical stores. Gil, 17-13467 (11th Cir. April 7, 2021).
The Eleventh Circuit’s holding that websites are not places of public accommodation under the ADA, which was not actually argued by the parties on appeal, is notable as the first Eleventh Circuit decision to directly address the issue in the website accessibility context. In support, the court cited to the statutory definition of “public accommodation,” which, the court noted, was an “expansive list of physical locations” that expressly did not include websites. Id.
The court also took the additional step of declining to adopt the “nexus standard” employed by other circuits that would impose liability under the ADA if a sufficient “nexus” existed between a website and physical place of public accommodation, noting it found “no basis for it in statute or in [the court’s] precedent.” Id.
The court did, however, acknowledge that plaintiff could state a claim for a violation of the ADA if he could show that the website created an “intangible barrier” to his access to the goods, services, privileges, or advantages of Winn Dixie’s physical stores, but found that Winn Dixie’s website did not present such a barrier. The court reached this conclusion based on two primary factors: (1) no goods or services could be purchased on the website; and (2) “all interactions with Winn-Dixie which can be (although need not be) initiated on the site website must be completed in-store: prescription pick-ups and redemption of coupons.” Id.
There remain statutory accessibility requirements, including under the California Consumer Privacy Act and other statutes, and the practical impact of the Eleventh Circuit’s decision will be unknown for some time. Plaintiff has also filed a Petition for Rehearing en banc. In the short term, the decision makes the Eleventh Circuit a less attractive venue for plaintiffs seeking to file website accessibility lawsuits. The decision, which now widens the Circuit split on the application of the ADA to websites, may also increase the likelihood of the US Supreme Court takes up the issue and provides more uniform guidance. Interestingly, in 2019, the Eleventh Circuit became the first federal circuit court of appeals to find that a single phone call make for marketing purposes to a cell phone does not cause sufficient injury-in-fact to establish standing to allow an aggrieved call recipient to sue under the Telephone Consumer Protection Act. Salcedo v. Hanna, 936 F.3d 1162, 1167 (11th Cir. 2019). It will be interesting to see whether Winn-Dixie and Salcedo reflect an Eleventh Circuit trend against the types of cookie cutter, mass-filing class action lawsuits under the ADA and TCPA that have arisen in great abundance over the past few years.