Websites May Be Places of Public Accommodation Subject to the ADA

Alleged Lack of Online Accommodation for Blind

In Haynes, a blind plaintiff alleged that Dunkin’ Donuts violated Title III of the ADA by failing to maintain a website compatible with any screen reading software for blind persons, including the type used by him, called “JAWS.” As a result, the plaintiff contended that he was denied the ability to access the goods and services offered on the website, including locating physical store locations and purchasing gift cards.

Title III prohibits discrimination “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 … operates a place of public accommodation.” The ADA includes in its definition of public accommodation “a restaurant, bar, or other establishment serving food or drink.”

The defendant moved to dismiss, arguing that although its stores are places of public accommodation, its website is not. The U.S. District Court for the Southern District of Florida agreed, holding that the plaintiff failed to allege a “nexus between the barriers to access that he faced on the website and his inability to access goods and services at Dunkin’ Donuts’ physical store.”

Websites for Places of Public Accommodations Subject to ADA

The Eleventh Circuit reversed, finding the allegations reflected that “the website is a service that facilitates the use of Dunkin’ Donuts’ shops, which are places of public accommodation.” It reasoned that “[t]he prohibition on discrimination is not limited to tangible barriers that disabled persons face but can extend to intangible barriers as well.” Because the website allegedly provided some of the same services as was available in Dunkin’ Donuts’ physical locations, such as store location information and gift card sales, but did not also make them available to the vision-impaired, the Eleventh Circuit concluded that lack of access “can be said to exclude, deny, or otherwise treat blind people ‘differently than other individuals because of the absence of auxiliary aids and services.’”

In so holding, the appellate court relied on its prior decision in Rendon v. Valleycrest Productions, Ltd., which held that the ADA’s protections could extend to intangible barriers, such as a telephone selection process that improperly prevented disabled contestants from competing on the television show Who Wants To Be A Millionaire.

Are Websites Places of Public Accommodation?

The circuit courts are divided over whether a website can be a place of public accommodation. “There’s a split amongst some of the circuits as to whether or not, if you solely reside on the Internet, if you’re covered by Title III or if you really have to have a brick-and-mortar location in addition to a website,” explains David Gevertz, Atlanta, GA, cochair of the ABA Section of Litigation’s Labor and Employment Committee.  

On the one hand, the Sixth, Ninth, and Eleventh Circuits hold that for a website to be subject to the ADA, there must be a “nexus” between the challenged service and the physical place of public accommodation. That is precisely what the court determined in Haynes, when it held that the defendant’s website allegedly discriminated against the vision-impaired by making certain information inaccessible. “The Eleventh Circuit did not find that the website, itself, was a place of public accommodation,” observes Kathryn Honecker, Scottsdale, AZ, cochair of the Section of Litigation’s Consumer Litigation Committee. 

On the other hand, some circuits hold that websites, by themselves, can constitute places of public accommodation. “The First and Seventh Circuits say that a website that is just on the web—it is assuming that it engages in interstate commerce—is a place of public accommodation,” Gevertz says.

For example, the Seventh Circuit in Morgan v. Joint Administration Board, Retirement Plan of the Pillsbury Co. has rejected the notion that a public accommodation is limited to a physical site: “An 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 First Circuit likewise held that web-based services can be subject to Title III in Carparts Distribution Center, Inc. v. Automotive Wholesalers Ass’n of New England, Inc.

Application of the Mootness Doctrine

Another hotly contested issue in this area is whether a defendant can raise a mootness defense where it has already reached a settlement with another plaintiff in a previous lawsuit—and has agreed to bring its website into compliance. Under the mootness doctrine, the defendant may defeat the ADA claim by showing that “the claim has effectively been resolved, either because it is subject to another settlement agreement that’s already in place that calls on them to bring the website into compliance or that they have already taken steps to make this happen either through an internal policy or something else,” according to Gevertz.

Courts in the Eleventh Circuit may not be amenable to this argument without proof that current compliance has actually been effectuated, however. For example, in Haynes v. Hooters of America, LLC, that appellate court declined to moot a new plaintiff’s claims challenging the accessibility of a website on the grounds that Hooters had agreed to improve its website in an earlier settlement with another claimant, according to Honecker. In so holding, the Eleventh Circuit stated, “while Hooters may be in the process of updating the accessibility of its website, there is nothing in the record demonstrating that Hooters has successfully done so.”

What Does the Future Hold?

As technology changes and more companies have websites in the coming years, what should we expect to see from the courts in this area? “In the past few years,” says Honecker, “hundreds of companies have been sued over the accessibility of their websites to those with visual or hearing disabilities.”

Depending on the facts of each case, more and more “courts are going to find that websites fall under Title III, that it’s strict liability, and that failure to go through any of the hoops to make sure that your site is compliant is going to prove problematic,” predicts Gevertz. “I’m not sure that I see a lot of pro-company cases coming down on that front,” he says.

What Can Companies Do?

To avoid claims of discrimination and make their websites more accessible to the vision-impaired, “companies with websites related to places of public accommodations should ensure that their websites use text in a format compatible with screen reading software,” advises Honecker. Further, “if a company uses videos on its website, it should consider including subtitles or transcripts for those with hearing issues,” Honecker adds.

Ultimately, however, there is not “any substitute for website designers becoming far more conscious about these standards than they currently appear to be,” says Gevertz.

Anthony R. McClure is an associate editor for Litigation News.

Resources

• 42 U.S.C. § 12181 et seq.
• Haynes v. Dunkin’ Donuts LLC et al., No. 18-10373 (11th Cir. July 31, 2018).
• Rendon v. Valleycrest Productions, Limited, No. 01-11197 (11th Cir. 2002).
• Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998).
• Parker v. Metro. Life Ins., 121 F.3d 1006 (6th Cir. 1997).
• Cullen v. Netflix, Inc., 600 F. App’x 508 (9th Cir. 2015).
• Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12 (1st Cir. 1994).
• Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co., 268 F.3d 456 (7th Cir. 2001).
• Haynes v. Hooters of America, LLC, No. 17-13170 (11th Cir. June 19, 2018).

^{Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).}