Is a Website a Place of Public Accommodation?

by Ericka J. Thomas

The Americans with Disabilities Act (42 U.S.C.A. §§ 12101 et seq.) protects the rights of individuals with disabilities with respect to public accommodations and facilities. Title III of the ADA, which applies to places of public accommodation, prohibits discrimination against individuals “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 mandates an equal opportunity to participate in or benefit from the goods and services offered by a place of public accommodation, but does not guarantee that an individual with a disability must achieve an identical result or level of achievement as persons without disabilities.

To determine whether a requested modification is necessary under the ADA, public accommodations must start by considering how their facilities are used by nondisabled guests and then must take reasonable steps to provide disabled guests with a like experience. When Congress passed the ADA, in 1990, the Internet was in its infancy. However, Congress intended that the ADA address not only physical barriers but also communication barriers. This has required ADA cases to consider rapidly changing technology.

This issue is illustrated in the case of Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1270 (11th Cir. 2021). In Gil, a legally blind grocery store patron brought an action against a grocery chain alleging a violation of the ADA based upon its website. The patron asserted that the website was inaccessible to visually impaired customers because it was incompatible with screen reader software, which visually impaired patrons use to vocalize the content of websites. This particular patron had tried to refill prescriptions on the website and was unable to do so. The patron asserted that Winn-Dixie had violated the ADA because visually impaired individuals were not provided with “full and equal enjoyment of the services…provided through the website.” After years of litigation and a verdict in favor of the patron after a bench trial, the case reached the 11th Circuit Court of Appeals.

The 11th Circuit initially determined that the patron had standing to bring a claim under Article III of the ADA because he had suffered an “injury in fact” by being

unable to access the Winn-Dixie website. The court noted that the patron was not able to avail himself of certain services and products available only on the website, which created his injury in fact. The court then turned to the question of whether a website is a “place of public accommodation” under Title III of the ADA. The court noted that neither the ADA nor the Department of Justice, who is responsible for promulgating regulations to implement the ADA, have included websites in their list of “public accommodations.” Accordingly, based upon the plain language of Title III of the ADA, “public accommodations” are limited to actual physical places and do not include websites. The court held that the plaintiff’s inability to access and communicate with the website itself was not a violation of Title III of the ADA.

The court then considered whether the inability to access the Winn-Dixie website created an “intangible barrier” that prevented the plaintiff from accessing a good, service, or privilege of the Winn-Dixie physical stores.  After considering that the Winn-Dixie website had limited functionality and that all interactions that were initiated on the website had to be completed in store (i.e., physically picking up a prescription, redeeming coupons, etc.), the court concluded that the plaintiff’s inability to access the website did not create an “intangible barrier” to plaintiff’s full enjoyment of Winn-Dixie’s goods and services. Plaintiff could still go to the physical stores and have the same access to the goods and services as non-disabled patrons. The court pointed out that the plaintiff had been a patron of the physical stores for over fifteen years and had no issues gaining full access to all goods and services.

The court continued by noting that although the website may provide time saving benefits, these benefits are not necessary to ensure access to all available goods and services. Title III only requires that public accommodations provide equal access. Ultimately, the court reversed the verdict and stated “Absent congressional action that broadens the definition of “places of public accommodation” to include websites, we cannot extend ADA liability to the facts presented to us here, where there is no barrier to the access demanded by the statute.”

Although the court ruled in favor of Winn-Dixie in the Gil case, it is notable that the circuits are split as to whether a plaintiff alleging a Title III violation relating to a website has to show a nexus between the website and a physical location. Courts in the First, Second, and Seventh Circuits have found that the ADA can apply to a website even without a connection to a physical space. Courts in the Third, Sixth, Ninth, and Eleventh Circuits, in contrast, have concluded that places of public accommodation must be physical spaces and “that goods and services provided by a public accommodation must have a sufficient nexus to a physical place in order to be covered by the ADA.” Because of the extreme split between the circuits, this issue is ripe to be addressed by the U.S. Supreme Court in the next few years.