In December 2017, we reported on the number of lawsuits being filed around the country against businesses and retailers for violations of Title III of the Americans with Disabilities Act ("ADA") that requires equal access for persons with disabilities in places of public accommodation. These lawsuits targeted businesses' websites, claiming they were not accessible by the visual or hearing impaired.
In a long-awaited ruling, the Eleventh Circuit ruled 3-2 on April 7, 2021 that "a website is not a place of public accommodation to which the ADA applies," vacating the earlier district court decision finding Winn-Dixie violated Title III of the ADA. See Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. Apr. 7, 2021). While this may seem like a resounding win for businesses and retailers, the holding is actually quite narrow.
Interpreting the language of Article III and its implementing regulations, the Eleventh Circuit noted that websites are not among the places identified as places of public accommodation. The places that are identified are all tangible, public places. Under a plain language reading of Title III, the Court held that websites are not places of public accommodation under Title III of the ADA. (With this ruling, the Eleventh Circuit joins the Third, Sixth and Ninth Circuits in finding that a public accommodation is an actual physical place, widening a circuit split. The First and Seventh Circuits have found non-public places to be within the scope of the "public accommodation" language of Title III.)
The Court's analysis did not end there. The Court also addressed whether the lack of website accessibility created an "intangible barrier" that prevented the plaintiff from accessing a place of public accommodation. In finding that no such intangible barrier existed, the Court noted that Winn-Dixie's website had limited functionality and "all interactions with Winn-Dixie which can be (although need not be) initiated on the website must be completed in-store," including prescription pick-ups and redemption of coupons. For the website to create an intangible barrier, the Court said that the plaintiff must be "excluded, denied services, segregated, or otherwise treated differently from other individuals in the physical stores." In the Court's opinion, the fact that a website and the services offered on it may offer greater convenience and save time does not mean that the individual is denied services in the physical stores within the meaning of Title III of the ADA.
While the Winn-Dixie case is a win for Winn-Dixie, many businesses have websites with far greater functionality than the Winn-Dixie website. Stores that actually complete sales on their website or offer unique services available only through the website likely are not saved by the Eleventh Circuit's ruling in Winn-Dixie. Moreover, with the stay-at-home orders mandated by the COVID-19 pandemic, individuals are doing more from home and through their computer than ever before. Only time will tell whether the pandemic plus a new administration likely to focus on disability claims will alter enforcement or guidance on these type of claims. It is also possible that this matter makes its way to the United States Supreme Court to resolve the circuit split.