Appeals courts split on whether websites are ‘places of public accommodation’ under ADA
Over the last five years, an unceasing wave of lawsuits and demand letters alleging violations of the Americans with Disabilities Act has rolled over businesses across the United States. Plaintiffs have argued that failing to provide websites that are accessible to individuals with disabilities is a violation of the ADA. Specifically, Title III of the ADA prohibits discrimination based on disability in places that are open to the public and requires companies to eliminate barriers to access. Title III applies to most businesses, including hotels, restaurants, stores, office buildings, and medical, law, and accounting offices.
Now, one of the first cases to address website accessibility is back in the spotlight. On April 7, 2021, the Eleventh Circuit Court of Appeals, which covers Alabama, Georgia and Florida, issued an opinion in the case Gil v. Winn-Dixie. The case squarely holds that “websites are not places of public accommodation under Title III of the ADA.”
Eleventh Circuit splits from other courts, applies strict textualist approach
Juan Carlos Gil, who is blind, sued Winn-Dixie grocery store in July 2016, alleging that he could not use the store’s website to refill his prescriptions or link online coupons to his store card because the website was incompatible with the screen-reading software he used. In the first-ever web accessibility trial verdict, the court ruled in favor of Gil and required the grocery store chain to conform its website to Web Content Accessibility Guideline (“WCAG”) 2.0 Level AA, a privately developed set of accessibility criteria.
In the years that have followed, thousands of website accessibility cases have been filed and mostly settled. An untold number of businesses have redeveloped their websites to conform to WCAG standards to prevent litigation.
In the meantime, Winn-Dixie appealed the trial court’s ruling. Now, after years of deliberation, a three-judge panel for the Eleventh Circuit has reversed, ruling in favor of Winn-Dixie.
The Eleventh Circuit held that a website is not a place of public accommodation, because there is no statutory language covering websites in Title III of the ADA. Applying a strict textualist approach, the court held that the fact that Winn-Dixie’s website was inaccessible to blind users was not a violation of the ADA. The Eleventh Circuit also found that Gil had other access to the goods and services offered by Winn-Dixie because he could go into the store to refill his prescriptions and redeem coupons.
Decision not likely to stem tide of accessibility lawsuits
It is unclear whether a different result would have been reached if the website had been Gil’s sole access point to Winn-Dixie’s goods and services. Judge Jill Pryor dissented from the majority’s opinion, noting that “the ADA’s guarantee of freedom from discrimination for disabled individuals is broad,” and that Winn-Dixie had denied blind customers the full and equal enjoyment of the stores’ services, including use of its website.
Businesses in website accessibility cases have long argued that Title III of the ADA contains no language that covers websites. However, this argument has not received much traction before the Winn-Dixie ruling, with the majority of district courts holding that websites are covered under the ADA and must be accessible. The Tenth Circuit Court of Appeals, which covers Oklahoma, has not yet decided the issue.
The Eleventh Circuit declined to follow the Ninth Circuit’s ruling in Robles v. Dominos Pizza, LLC, which held that Title III of the ADA does apply to websites with a nexus to a physical place of accommodation. Robles also held that imposing liability for an inaccessible website did not violate due process, despite the lack of official web accessibility regulations. In 2019, the U.S. Supreme Court declined to review Robles, leaving the ruling intact. The Eleventh Circuit went out of its way to note that it did not find the Robles decision persuasive.
The ruling is vindication for businesses and commentators who have long argued that courts should consider the lack of statutory text covering websites in the ADA. However, it is unlikely that this ruling will stem the tide of website accessibility lawsuits across the country. Because many companies’ websites reach an audience (and often sell products) across the country, savvy plaintiffs will simply pick a jurisdiction more favorable than the Eleventh Circuit in which to bring their lawsuit. California and New York both have state laws that cover accessibility, and hundreds of website accessibility cases are filed each year in those states.
On the other hand, now that there is a split of authority within the federal circuit courts, there is a better chance that the U.S. Supreme Court will take up the issue and finally provide some nationwide certainty in the area of website accessibility.
In the meantime, companies must carefully consider many circumstances when deciding whether to redesign their website to address accessibility concerns. For legal assistance on website accessibility and other ADA issues, please contact the author.
Juan Carlos Gil v. Winn-Dixie Stores, Inc. No. 17-13467 (11th Cir. 2021).