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Website Wars: Eleventh Circuit Rules in a Split Decision That Websites are Not Public Accommodations for Purposes of the Americans With Disabilities Act

By Thomas P. Gies, Ira Saxe & Rachel Lesser on April 21, 2021
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Blind person using computer with braille computer display and a computer keyboard. Blindness aid, visual impairment, independent life concept.

After more than two years of deliberation, the Eleventh Circuit issued its decision in Gil v. Winn-Dixie on April 7, 2021.  Writing for the majority, Judge Elizabeth Branch reversed a trial court decision and found that Winn-Dixie’s website, which is incompatible with screen reading software used by the plaintiff, who is blind, did not violate Title III of the Americans with Disabilities Act (“ADA”).  In doing so, the court’s opinion in this closely-watched case advances the law in several frequently litigated issues in ADA Title III website accessibility disputes.

The Appellate Court’s Opinion

The Eleventh Circuit’s decision includes two key takeaways: (1) that websites are not “places of public accommodation” under the ADA; and (2) a rejection of the “nexus” standard, notably adopted by the Ninth Circuit.  In what it described as a strict textual reading of the ADA, the majority concluded that the retailer’s website was not a “place of public accommodation” within the meaning of the ADA.  Judge Branch emphasized that the statute includes an “expansive list” of examples of public accommodations—all of which are physical locations, not websites.  The court further reasoned that the website’s functionality did not interfere with the plaintiff’s right to “full and equal enjoyment” of a place of public accommodation, because he had visited its physical locations on many occasions.

The majority also rejected the plaintiff’s theory that the grocery store violated the ADA because its website was a “nexus” to its physical locations, and thus must be accessible to people with disabilities.  Among other courts, the Ninth Circuit adopted the “nexus” theory in its widely-publicized 2019 opinion in  Robles v. Domino’s.

The Eleventh Circuit also rejected the plaintiff’s alternative theory of liability under the ADA.  Gil argued that the website’s inaccessibility created an “intangible barrier” to the goods and services at the brick-and-mortar store.  The court rejected this claim, focusing on the fact that the website had “limited use” and was not the sole access point to the store.  Language in the majority opinion supports a relatively narrow interpretation of the statutory “auxiliary service” issue that is frequently litigated in ADA Title III cases.  See 42 U.S.C. § 12182(b)(2)(A)(i)-(ii).

Penning a dissent as long as the majority’s opinion, Judge Jill Pryor explained, “[t]he ADA is a sweeping piece of legislation; it is hardly surprising that its terms prohibiting discrimination are broad and inclusive.”  By narrowing the applicability of the ADA, Judge Pryor worried about the unintended consequences.  “As I read it, the majority opinion gives stores and restaurants license to provide websites and apps that are inaccessible to visually-impaired customers so long as those customers can access an inferior version of these public accommodations’ offerings.”

Implications for Businesses

The Eleventh Circuit’s decision is significant for businesses that exclusively operate online, at least within the Eleventh Circuit, because it holds that a website itself is not a place of public accommodation under the ADA.  The majority opinion also contains an analysis of Article III standing requirements, which may help clarify the law on this frequently litigated issue.  In addition, brick-and-mortar businesses that provide alternative means for disabled patrons to obtain goods and services, such as in-person or by phone or email, instead of just through a website, will find support in the court’s discussion of the “nexus” requirement.

It is nonetheless unlikely that the court’s decision signals the beginning of the end of ADA Title III website access litigation.  The majority’s decision appears to have created a clear circuit split with the Ninth Circuit, and advocates are reportedly planning on further appeals, perhaps by seeking review in the Supreme Court.  It remains to be seen whether other circuits will follow the majority’s view with respect to the court’s conclusions.  And it is an open issue whether this analysis will apply to state disability laws that are based on the ADA.

Finally, it is not clear how this decision will be applied to other websites sponsored by large retailers, particularly those used for sales or with broader product offerings than Winn-Dixie’s.  The court stressed in its holding that Winn-Dixie’s website was “limited use,” because it did not impact the use of the grocery store itself, a potentially dispositive fact that may not be the case for other websites.  In this respect, the court noted, and “[m]ost importantly, it is not a point of sale; all purchases must occur at the store.” This suggests that the Eleventh Circuit could reach a different conclusion in a case involving a website offering online sales.

Companies that operate websites will want to continue to monitor developments in this area, as the courts continue to process a substantial number of website accessibility claims filed by private party advocates. In addition, there is some indication that the Justice Department in the Biden Administration may decide to approach ADA cases with a more robust enforcement posture.

Photo of Thomas P. Gies Thomas P. Gies

Thomas P. Gies is a founding member of Crowell & Moring’s Labor & Employment Group. Tom has more than 35 years of experience in litigating employment disputes. Tom’s litigation experience includes five jury trials, two U.S. Supreme Court arguments, 18 federal appellate court…

Thomas P. Gies is a founding member of Crowell & Moring’s Labor & Employment Group. Tom has more than 35 years of experience in litigating employment disputes. Tom’s litigation experience includes five jury trials, two U.S. Supreme Court arguments, 18 federal appellate court arguments, and more than a hundred trial court and arbitration matters involving a wide range of labor and employment law issues, including traditional labor law, whistleblower retaliation, EEO claims and wage & hour class and collective actions. Tom also maintains an active compliance counseling practice, involving the full range of employment law issues facing U.S. employers. Tom’s traditional labor counseling practice has focused on helping companies develop and implement strategies in situations involving operational restructurings, facility closures, subcontracting of bargaining unit work, and work stoppages.

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Photo of Ira Saxe Ira Saxe

Ira Saxe is a member of the firm’s Labor & Employment Group and a partner in the New York office. He provides management-side labor and employment litigation defense before federal and state courts in class actions, single-plaintiff litigation, and administrative agency proceedings involving…

Ira Saxe is a member of the firm’s Labor & Employment Group and a partner in the New York office. He provides management-side labor and employment litigation defense before federal and state courts in class actions, single-plaintiff litigation, and administrative agency proceedings involving the Fair Labor Standards Act (FLSA), Executive Order 11246, the ADA, Title VII, the ADEA, OSHA, the STAA, ERISA, and the Labor Management Relations Act. His practice also includes a variety of other federal, state, and local wage and hour, discrimination, breach of contract, wrongful discharge, labor, and workplace tort claims.

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Photo of Rachel Lesser Rachel Lesser

Rachel Lesser is an associate in the Antitrust & Competition and Labor & Employment groups in Crowell & Moring’s Washington, D.C. office.

During law school, Rachel served as a legal intern for the Honorable Rosemary M. Collyer on the U.S. District Court for…

Rachel Lesser is an associate in the Antitrust & Competition and Labor & Employment groups in Crowell & Moring’s Washington, D.C. office.

During law school, Rachel served as a legal intern for the Honorable Rosemary M. Collyer on the U.S. District Court for the District of Columbia. She was the managing editor for The Georgetown Journal on Poverty Law & Policy. Upon graduating, Rachel received the Dean’s Certificate for special and outstanding service to the Georgetown Law community.

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  • Posted in:
    Real Estate & Construction
  • Blog:
    Retail & Consumer Products Law Observer
  • Organization:
    Crowell & Moring LLP
  • Article: View Original Source

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