Is a website a public accommodation?
Thirty years after lawmakers signed the Americans with Disabilities Act (ADA), courts have yet to come to a consensus on how or whether it applies to websites. The people who created the ADA in 1990 never have envisioned the integral role websites play in commerce and in everyday life. In 1990 the internet had barely been invented.
With proper coding, assistive technology can easily access websites. But many websites fail to make that accessible coding a priority, thereby preventing people with disabilities, many of whom use assistive technology, from accessing the products, services, or information offered on the websites. For years, this went largely overlooked for corporate or privately owned websites. That changed in 2017 when the first Winn Dixie trial court decided that the ADA could apply to websites. Since then, ADA lawsuits targeting inaccessible websites have increased exponentially.
In recent years, circuit courts have issued a number of differing opinions about how to legally define websites- either as their own places of public accommodation or as “services” offered by physical places of public accommodation. But while the nuances vary, circuit courts have generally agreed that the ADA should apply any time people are unfairly prevented from accessing information, products, or services, whether physically or digitally.
Lack of national standards make the ADA difficult to enforce
While trial and Circuit Courts have offered their opinions on whether the ADA applies to websites, the Supreme Court and Department of Justice (DOJ) have both declined to provide any guidance on the matter. This is problematic because websites almost always reach nationwide, and the ADA is a federal law. Until recently, Circuit Courts mostly agreed that the ADA should apply to websites in some way. Then, on April 7th, 2021, the 11th Circuit, which covers Florida, Georgia, and Alabama, took a strikingly literal approach to the ADA in the absence of federal regulations.
Winn Dixie, a Landmark Digital Accessibility Case on two counts
In 2017, courts ruled in favor of the plaintiff, Juan Carlos Gil, when he alleged discrimination by Winn Dixie’s website. He had been unable to use Winn Dixie’s website to locate stores, submit prescriptions, or access digital coupons. In a first-of-its-kind decision, courts held that Winn Dixie’s website had a sufficient nexus to the physical store, which was a place of public accommodation, and therefore must be accessible.
Winn Dixie appealed the decision, and in 2021 the 11th circuit decided on a very literal approach to the ADA. In another unprecedented decision, they overturned the lower court’s ruling and decided that the ADA does not apply to websites because the ADA does not mention websites, and because this inaccessible website in no way prevents customers from visiting the store or completing purchases there. In fact, customers could not complete purchases or other transactions on the website without physically visiting the stores.
11th Circuit dissents with other Circuit Courts
The unprecedented Winn Dixie opinion is in stark contrast to another landmark case, involving Domino’s Pizza. In that case, the plaintiff Guillermo Robles was unable to complete a purchase on Domino’s website, which he claimed was discrimination. When courts in the 9th Appellate Circuit heard the case, they ruled in Robles’ favor. They opined that Domino’s website had a nexus to a place of public accommodation, and that the inaccessible website constituted a barrier to that place. Courts in the Winn Dixie case very deliberately contrasted their case against the Domino’s case for two reasons. First, the Domino’s case involved a website in which customers could complete a purchase without ever having to go into the store. Winn Dixie’s website still required a store visit. Second, 11th Circuit Courts just plain disagreed with the “nexus” standard for a website.
What does the 11th Circuit Court decision mean for digital accessibility?
Now there are two completely different opinions among circuit courts as to whether or not websites should be covered by the ADA. The only way for courts to resolve the dissenting opinions is for the Supreme Court or DOJ to provide clear guidance.
As 11th Circuit justices mentioned, they must interpret the law based on what it says. They feel they should not stretch the law to cover things the ADA does not specifically mention. The Eleventh Circuit wrote, “Our constitutional structure does not permit this Court to rewrite the statute that Congress has enacted.”
Does that mean websites don’t need to be accessible?
This one court case in this one circuit court does set precedence. According to this 11th Circuit precedent, the ADA might no longer cover inaccessible websites in the states of Alabama, Georgia, and Florida. But that does not mean businesses can’t face litigation elsewhere or in the future, if the case is overturned or federal guidance is enacted. This precedent only affects cases alleging federal ADA violations, not state or local digital accessibility laws. Also, plaintiffs from states in other circuit courts alleging ADA violations can file a lawsuit in their circuits, even if the company is located in the 11th circuit (or anywhere else).
Only one way to avoid lawsuits
How can you avoid litigation even with conflicting rulings? If you are careful to make your website and all your digital resources accessible to everyone, website visitors will be able to find what they’re looking for, won’t face discrimination, and will have no reason to file a lawsuit against your company. WCAG standards have frequently been referred to in courts and around the world as the standard by which to measure a website’s accessibility. WCAG lays out a series of definitions and parameters for how your website and digital content should function, not a static list of rules. Consequently, meeting WCAG guidelines means your unique website is truly usable by people with disabilities. To protect your organization, make sure your website and all content, including PDFs, are accessible to every visitor using WCAG standards.
Not sure where to start when making all your PDF documents accessible? Check the recording of our April webinar: Creating a plan for PDF remediation!