The ADA and Places of Public Accommodation
The ADA is meant to “assure equality of opportunity, full participation, independent living, and economic self-sufficiency” for individuals with disabilities. Title III of the ADA provides that no individuals “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.” A place of public accommodation is thus liable for unlawful discrimination when, among other things, it fails to “take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” Any person subjected to discrimination because of a disability in violation of Title III may bring a private action. To prevail on a Title III ADA claim, a plaintiff generally has the burden of proving that he or she is an individual with a disability; that the defendant owns, leases, or operates a place of public accommodation; and that the defendant denied him or her full and equal enjoyment of goods, services, facilities or privileges offered by the defendant on the basis of his or her disability.
U.S. Department of Justice (“DOJ”) regulations require that a place of public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” The DOJ further defines “auxiliary aids and services” to include “accessible electronic and information technology” or “other effective methods of making visually delivered materials available to individuals who are blind or have low vision.”
Because the ADA was passed before the widespread use of the internet by businesses and consumers, early regulations were focused on addressing physical access barriers to traditional brick-and-mortar businesses and did not address guidelines for web or other online compliance. Yet at least since 1996, the DOJ has taken the position that Title III of the ADA fully applies to the websites and other online presences of places of public accommodations. In 2010, the DOJ announced plans to amend its regulations to affirmatively require and dictate the means and methods of website compliance with the ADA, seeking public comments as to what standards to adopt. It again announced plans in 2015 to publish a Notice of Proposed Rulemaking (“NPRM”) regarding website accessibility and compliance with the ADA. Yet the NPRM was never published and in 2017 the DOJ formally withdrew it, explaining that the DOJ was still “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate.” The DOJ has taken no further steps since that time toward promulgating rules for website compliance.
The Circuit Split: Are Websites Places of Public Accommodation?
Without any further formal guidance, website and online accessibility and compliance issues, including whether websites and online platforms are “places of public accommodation,” have been largely left to the courts to sort out. Cases addressing whether websites or other nonphysical entities are places of public accommodation subject to Title III of the ADA generally fall into two categories. In the first category are the circuits that have concluded that websites and other nonphysical entities must be ADA-compliant where the alleged inaccessibility of a business’s website or app impedes access to the goods and services of its physical business, i.e., there must be a nexus between a company’s website and a physical location from which the business is operated. For instance, in Robles v. Domino’s Pizza, LLC, a blind plaintiff alleged that he was unable to order pizza through the chain’s website or app because Domino’s had failed to design them to be compatible with his screen-reading software. The Ninth Circuit held that “[t]he alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.” Customers use the website and app to locate a franchise and then place orders for pick up or delivery. So even though websites and apps may not themselves be places of public accommodation, “[t]he statute applies to the services of a place of public accommodation, not in a place of public accommodation.” The court concluded that “[t]his nexus between Domino’s website and app and physical restaurants . . . is critical to our analysis.”
In the second category are the circuits that have held that the ADA fully applies to non-physical spaces or entities, including websites, and that no nexus to a physical location is required for the ADA to apply. In Morgan v. Joint Administrative Board., Retirement Plan of Pillsbury Co., for example, the Seventh Circuit explained that the use of the term “public accommodation” in the ADA should not be construed literally as denoting a physical site, as “[t]he site of the sale is irrelevant to Congress’s goal of granting the disabled equal access to sellers of goods and services.” To that end, “[a]n insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store.” The significance of this split in authority is great: in some jurisdictions a website or app alone is considered a place of public accommodation subject to the ADA, while in others the ADA will only apply if a website’s inaccessibility impedes access to goods or services offered at a physical location.
The Eleventh Circuit Charts a New Course
In a significant and highly anticipated decision issued in April 2021, the Eleventh Circuit appears to have charted yet another path beyond the current circuit split. In Gil v. Winn-Dixie Stores, Inc., a visually impaired and long-time customer of the grocery chain Winn-Dixie sued under the ADA alleging that Winn-Dixie’s website was incompatible with his screen reading software. While it was undisputed that Winn-Dixie only sells goods in its physical stores and does not offer any sales directly through its website, it does allow customers to place orders to re-fill their prescriptions online for later in-store pickup. The plaintiff ’s suit alleged that he was interested in filling his prescriptions online but was precluded from doing so because of the incompatibility of the site with his screen reading software. At trial, the plaintiff testified that for years he had had to go to physical Winn-Dixie stores to fill prescriptions, asking an associate there to guide him to the pharmacy where he would then place his order and wait for it to be filled. He was excited to learn that one could order prescriptions through Winn-Dixie’s website, but was discouraged after discovering it was incompatible with his screen-reading software and so he simply stopped going to Winn-Dixie stores altogether. After trial, the district court found that Winn-Dixie’s website violated the ADA, holding that because the website is integrated with “and in many ways operates as a gateway to, Winn-Dixie’s physical store locations,” there was a sufficient nexus such that the ADA should apply. The court issued an injunction that, among other things, required Winn-Dixie to make its website accessible to individuals with disabilities by conforming to the Web Content Accessibility Guidelines (“WCAG”) published by a private, non-governmental body of experts.
Winn-Dixie then appealed, challenging whether Title III applied to its website. In a two-to-one split decision, the Eleventh Circuit first determined that websites cannot themselves be considered places of public accommodation because the statutory language defining “public accommodation” is “unambiguous and clear” and only lists “twelve types of locations,” all of which are “tangible, physical places.” So “pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places.”
Next, the Gil court grappled with whether the ADA should nonetheless apply to Winn-Dixie’s website because of its “nexus” to Winn-Dixie’s physical stores. Specifically, the plaintiff argued that the website’s “inaccessibility serves as an intangible barrier to his ‘equal access to the services, privileges, and advantages of Winn-Dixie’s physical stores,’ which are a place of public accommodation.” The court rejected that argument, determining that there was no such “intangible barrier” because any attempts to fill prescriptions through the website must be completed in-store, and “nothing prevents Gil from shopping at the physical store.” In so ruling, the court expressly rejected the “nexus” standard, i.e., that Title III applies to websites when websites “augment” a physical store’s services or privileges. The court explained that while “the nexus standard was ‘critical’ to the Roble’s court’s holding . . . as explained above, we decline to adopt the ‘nexus’ standard. . . . In sum, we do not find Robles persuasive, either factually or legally. Instead, we apply the statute.”
The critical question for the Eleventh Circuit was thus not whether there is a “nexus” between the website and the goods or services of a physical store, but rather whether the inaccessible website means that a disabled individual is wholly precluded from enjoying the goods or services offered by the physical store, i.e., is an inaccessible website a barrier to the use and enjoyment of the goods and services, or are they simply made more inconvenient to access. The Gil court held that Winn-Dixie did not violate the ADA by maintaining a website that was inaccessible to visually impaired consumers because it was not an “intangible barrier” to accessing Winn-Dixies goods and services, and it vacated the decision of the lower court.
Congress could act to amend the definition of a place of “public accommodation” to specifically include websites and apps, which would resolve the split by the courts. Alternatively, the Supreme Court may choose to grant certiorari to a Title III case to resolve the circuit split and establish when or if a business’s website is subject to Title III. Until then, a business’s exposure to Title III suits based on website accessibility will continue to be largely determined by the circuit in which the challenge is brought.
Current Trends in Providing Remedies in Website Accessibility Suits
Beyond the question of when websites must comply with the ADA is the question of what is required for a website to comply. The lack of DOJ regulations specifying technical standards for website compliance with the ADA has meant that owners and operators of websites and apps, as well as courts and litigants, have had to look for guidance elsewhere. The ADA and DOJ regulations mandate that places of public accommodation must “effectively communicate” with their disabled customers and facilitate their “full and equal enjoyment” of the offered goods and services but do not detail how this is to be achieved. The Ninth Circuit recently described this standard as “flexible, but not ambiguous,” and courts have generally rejected due process challenges based on the argument that this statutory duty does not provide fair notice of what specifically the ADA requires companies to do in order to make their websites comply. Indeed, some courts have noted that the lack of specific DOJ guidance on website compliance might be purposeful, as “the ADA and its implementing regulations are intended to give public accommodations maximum flexibility.” In this sense, the lack of guidance could be understood as “a feature, not a bug, and certainly not a violation of due process.”
Increasingly, interested parties have looked to rules drafted by the World Wide Web Consortium (“W3C”), a non-governmental and independent international body of experts, which has published various Web Content Accessibility Guidelines (“WCAG”). These guidelines contain detailed technical specifications and requirements for web accessibility for use by private industry. For instance, the WCAG provides that, to make websites accessible to the blind, they should use alternative text that allows blind users to translate website content into speech or Braille using screen reader software, among many other recommendation and prescriptions.
Courts, the government, and private litigants have increasingly looked to the WCAG in determining and assessing a party’s ADA compliance and in implementing settlements. But importantly, the WCAG are simply private, unenforceable recommended guidelines unless incorporated into a specific court order of injunctive relief. As the Ninth Circuit recently explained, a plaintiff cannot simply seek to impose liability on a defendant for its failure to comply with the WCAG; a party’s liability is based on whether or not it complies with the ADA—and the ADA alone. But courts certainly can order compliance with provisions of the WCAG “as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.” Increasingly, courts have opted to do so and this trend is expected to continue in the years ahead.
Until Congress or the Supreme Court addresses when and how a business’s website must comply with the ADA, there will be further developments and refinements of the various doctrines underlying the circuit split and the upwards trend in litigation is expected to continue. The lack of specific DOJ guidance means that courts and litigants will continue to seek out equitable remedies, including continued reliance on the WCAG.