MAYA FRUCHT—The internet is an integral part of society. With the assistance of screen reader software, the legally blind or visually impaired can use websites to the same degree as everyone else. However, many websites are inaccessible with this software.
Under Title III of the Americans with Disabilities Act of 1990 (ADA), “[n]o 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.” The ADA defines “public accommodation” as a private entity whose operations affect commerce and fall within one of the twelve enumerated categories. Recently, courts have interpreted this definition to no longer apply to only brick and mortar locations, but now to websites as well.
On June 12, 2017, in the first case of its kind, the court in Gil v. Winn-Dixie Stores, Inc. found Winn-Dixie’s website inaccessible to visually impaired individuals who must use screen reader software, violating the ADA because plaintiff was denied the full and equal employment of the goods, services, facilities, privileges, advantages, or accommodations required by the ADA. The Court did not decide whether Winn-Dixie’s website is a “place of public accommodation” because their website was so heavily integrated with their physical store location that it operated as a gateway to the physical store.
Courts are split on whether the ADA includes websites as a place of public accommodation or if it is limited to brick and mortar locations. Courts in the First, Second, and Seventh Circuits have found that the concept of a place of public accommodation can apply to websites, independent of any connection or nexus between the website and the physical location. Conversely, courts in the Third and Sixth Circuits have found a place of public accommodation must be a physical location, and the Ninth Circuit goes one step further in requiring a connection between the good or service and a physical location.
The Eleventh Circuit has yet to address this issue. However, in Rendon v. Valleycrest Productions, Ltd., the Eleventh Circuit found the plain and unambiguous reading of Title III of the ADA “covers both tangible barriers” and “intangible barriers . . . that restrict a disabled person’s ability to enjoy the defendant entity’s goods, services and privileges.” Courts in the Eleventh Circuit have found websites are not covered by the ADA when they are “wholly unconnected to a physical location.” But when there is a sufficient nexus between the website and the physical store, these courts have found websites to be a place of public accommodation under the ADA. With Gil on appeal to the Eleventh Circuit, it is likely the Eleventh Circuit will decide if, and when, a website is a place of public accommodation under the ADA.
Since Gil, courts in California and New York have denied motions to dismiss on similar website accessibility lawsuits. In Andrews v. Blick Art Materials, LLC, the court noted a broad interpretation of the ADA is proper because it is “harmonious with the purpose of the ADA.” Specifically, the court described the ADA as “a broad mandate with the sweeping purpose of eliminating discrimination against disabled individuals and integrating them into the economic and social mainstream of American life.”
This would be a particularly significant time for this issue to be settled. 2017 has seen the most website accessibility lawsuits, while setting the record for the most physical store closings—and it is still only mid-November. With thousands of brick and mortar stores closing, companies are forcing its customers to resort to the internet to buy their goods or services. Although Gil is not binding, it is likely to inspire a surplus amount of website accessibility lawsuits. While not all websites will be considered places of public accommodation, companies, especially those that use websites to sell or provide consumer goods and services, should act proactively by ensuring their websites are ADA compliant.
It is especially important to note that the ADA was passed in 1990—before the internet became a vital part of our society—so it is unclear whether Congress intended to include websites. However, as the Andrews Court noted, just because the “meteoric rise” of the Internet and “its impact on communal and commercial affairs could not have been anticipated by Congress does not mean the law’s application to the Internet and website is ambiguous.”