ADA & Website Accessibility

Sofia Manzo – When the Americans with Disabilities Act was first enacted in the 1990s, Congress failed to anticipate the role that the internet would play in people’s lives. While the ADA prohibits discrimination on the basis of disability in places of public accommodations such as restaurants, retail stores, and theaters, no such allowance was made for websites. As a result, courts have been left to determine whether websites constitute places of public accommodation for purposes of the ADA.

With the recent holding in Gil v. Winn-Dixie Stores, Inc., there is now a clear circuit split that must be resolved. Gil arose when Juan Carlos Gil brought suit against Winn-Dixie alleging that its website violated the ADA because it was incompatible with screen-reader software required by the visually impaired. After a two-day non-jury trial, Judge Scola of the Southern District of Florida held that because Winn-Dixie’s website was both “heavily integrated” with and even provided a “gateway” to its stores, Gil’s rights under the ADA were violated because Winn-Dixie’s website “denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that Winn-Dixie offers to its sighted customers.” In doing so, the district court did not actually decide whether Winn-Dixie’s website constituted a place of public accommodation.

However, a divided Court of Appeals for the Eleventh Circuit has now vacated and remanded the district court’s ruling, holding that websites are not places public accommodation as they are not one of the twelve physical places expressly covered by the ADA. While that did not necessarily foreclose Gil’s case, the Eleventh Circuit further held that Winn-Dixie’s website did not violate the ADA because it did not create an “intangible barrier” to the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations” that Winn-Dixie offers.  In doing so, the court noted that Winn-Dixie’s website was of limited use and functionality as customers could not actually make purchases through the website and because Gil could still, and did, continue to shop at Winn-Dixie’s physical locations.

While the court was not persuaded by the fact that accessibility to Winn-Dixie’s website would make accessing its services more convenient, it did leave open the possibility that a business would have to offer such an accommodation. However, the court did not offer useful guidance for businesses to be able to determine when such a situation would arise. Yet one fact is very clear: Gils creates a clear conflict with the Ninth Circuit’s ruling that the websites are subject to the ADA where plaintiffs successfully demonstrate a nexus between the services offered on a website and the physical location. So, while the Eleventh Circuit’s holding seems to limit some ADA liability, this is little consolation for large nationwide businesses.

Rather than have the Supreme Court resolve this circuit split, however, Congress should amend the ADA to bring at least certain websites under the purview of the Act’s protection. The COVID-19 Pandemic has underscored just how desperately people rely on internet and in many ways, websites have replaced physical places of public accommodation. The law should clearly and uniformly reflect that fact.

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