The U.S. Court of Appeals for the Eleventh Circuit recently joined the fray of federal appellate courts addressing whether the Americans with Disabilities Act (“ADA”) applies to websites. In a 2-1 decision, the Eleventh Circuit concluded that defendant Winn-Dixie’s website was not a “place of public accommodation” under the ADA and that plaintiff’s inability to access the website did not constitute an “intangible barrier” to his ability to access and enjoy the goods, services, privileges, and advantages of Winn-Dixie’s physical store, which does constitute a place of public accommodation protected by the ADA.
After fifteen years of requesting prescription refills and redeeming coupons in Winn-Dixie’s grocery stores, the plaintiff—a visually impaired customer—turned to Winn-Dixie’s website to complete these tasks for the added privacy and convenience. Plaintiff sued Winn-Dixie alleging that its website violated the ADA because it did not accommodate screen reader software and therefore prevented him from enjoying the “goods, services, privileges, or advantages of Winn-Dixie.”
The district court ruled in favor of the plaintiff. The court avoided determining whether the website was a place of public accommodation under the ADA and instead concluded that the website’s failure to accommodate screen reader technology was an “intangible barrier” that prevented plaintiff from fully and equally enjoying the physical store.
On appeal, the Eleventh Circuit reversed the district court’s ruling, directly addressing two central questions at the heart of the debate over whether the ADA applies to a company’s website. First, the Court noted that the ADA and its regulations clarify the definition of “place of public accommodation” by identifying examples of tangible, physical places like stores and banks, and do not list any intangible places. Based on this plain reading of the ADA, the Eleventh Circuit concluded that the ADA does not apply to “intangible places or spaces, such as websites.”
Second, the Court ruled that although Winn-Dixie’s physical stores are places of public accommodation, the company’s failure to accommodate screen reader software on its website was not an “intangible barrier” to Winn-Dixie’s physical stores. The Court highlighted that whether the plaintiff could use Winn Dixie’s website did not impact his ability to fully enjoy the goods and services offered at the physical stores because he could fill prescriptions and use coupons at the physical stores, as he had for 15 years. The Court clarified that it does not adopt a “nexus” standard, whereby a plaintiff only has to demonstrate that there is a nexus between the service and physical place of public accommodation. Moreover, the Court held that the ADA requires a business to provide only necessary auxiliary aids or services, not those that are merely reasonable. Because plaintiff did not need screen reader software to fully enjoy Winn-Dixie’s physical stores, the Court found no ADA violation in relation to that deficiency.
This decision adds to the split among U.S. Court of Appeals on whether the ADA applies to websites. The Third, Sixth, Ninth, and Eleventh Circuits have narrowly interpreted “place of public accommodation” as referring to physical places, whereas the First and Seventh Circuits have ruled that the ADA is not limited to physical places and applies to websites. However, even amongst circuit courts that have narrowly interpreted “place of public accommodation,” the risks associated with online accessibility claims are greater in circuits like the Ninth Circuit that have adopted the “nexus” view—which is broader than the Eleventh Circuit’s view—and provides more grounds for plaintiffs to tie the alleged inability to access a company’s website to that company’s physical establishment.
The Eleventh Circuit’s ruling will have major repercussions on ADA website accessibility cases brought within the circuit. Practically speaking, however, we anticipate that plaintiffs will alter their litigation strategy, focusing their efforts on the jurisdictions that have adopted broader views of what constitutes a “place of public accommodation.”
Importantly, the Online Accessibility Act—which was recently re-introduced in the House— could address the circuit split by explicitly extending the ADA to cover consumer-facing websites and mobile applications. Under the proposed statute, a website or app would be compliant if it substantially complies with WCAG 2.0 Level A and Level AA standard, or subsequent iterations of the WCAG standards.