Differing judicial positions on the ADA’s application to websites set up a potential Supreme Court case.
As the pandemic forced people online, a question circulating the U.S. court system gained increasing importance: Does federal law require websites to be accessible to people with disabilities?
Earlier this spring, the U.S. Court of Appeals for the Eleventh Circuit answered this question in the negative, departing from another circuit court’s affirmative opinion in 2019. This resulting circuit “split” increases the chances that the U.S. Supreme Court will weigh in to settle the question nationwide.
Under Title III of the Americans With Disabilities Act (ADA), all places of public accommodation must make reasonable accommodations so that people with disabilities have full and equal access to their goods, services, facilities, privileges, and advantages. A wide swath of places that offer services to the public—including hotels, restaurants, stores, gyms, and professional offices—count as public accommodations under the law.
The question is whether digital locations on the internet have become functionally the same as these traditional physical places.
The ADA predates even the earliest websites. For this reason, the law does not reference the internet, let alone does it specify if websites are public accommodations. But now that the internet houses nearly 2 billion websites, people with disabilities are urging the courts to recognize websites as public accommodations subject to Title III requirements. Alternatively, they argue that, even if websites are not public accommodations, some websites must still be ADA compliant because they constitute “services” of public accommodations.
Several federal trial courts have ruled on cases asserting that inaccessible websites violate the ADA, but the first case to be considered at the appellate court level was Robles v. Domino’s Pizza, LLC.
In Robles, the plaintiff argued that Domino’s Pizza—a public accommodation—violated the ADA by designing and maintaining an inaccessible website. Specifically, the plaintiff, who is blind, alleged that he could not use the restaurant’s website to order food because the website was incompatible with screen-reading software.
In its 2019 decision, the U.S. Court of Appeals for the Ninth Circuit avoided the question of whether the Domino’s website itself was a public accommodation. Instead, the court characterized the website as a Domino’s Pizza “service” and stressed that ADA requirements apply to the services “of” public accommodations—not just services “in” public accommodations.
The court ultimately adopted a nexus test, holding that the ADA applies to websites that “facilitate access to the goods and services of a place of public accommodation.” The ADA applied to Domino’s’ website because the website connected customers to the restaurant’s food services.
In April, the Eleventh Circuit declined to follow Robles.
In the Eleventh Circuit case, Gil v. Winn-Dixie, Juan Carlos Gil alleged that he could not use parts of Winn-Dixie’s website—such as the prescription refill function—because the website was incompatible with his screen reader. Gil argued that the website violated the ADA because it had a nexus to Winn-Dixie grocery stores, which are places of public accommodations.
The lower court adopted the Ninth Circuit’s nexus test, holding after a bench trial that the ADA applied to Winn-Dixie’s website because the website connected customers to the store’s prescription services.
But on appeal, a divided panel rejected the nexus test and vacated the lower court’s decision.
The majority applied an “intangible barrier” standard and found that Winn-Dixie’s website did not violate the ADA. According to the panel, the ADA forbids only absolute barriers to services. It does not require equal access to intangible privileges and advantages—such as privacy and convenience—that might be gleaned from accessing services online, the court said. Because Gil could obtain prescription refills in person at Winn-Dixie stores, the website was not an absolute barrier to those services and therefore did not violate the ADA.
In a dissenting opinion from the Winn-Dixie decision, Judge Jill A. Pryor characterized the majority’s reasoning as “doubly flawed.”
First, according to Judge Pryor, the majority was wrong to limit the scope of the services at issue to in-store prescription refills. Winn-Dixie’s online prescription offering was a service under the ADA because it enabled customers to request refills in advance. Moreover, the online service was a protected “privilege” or “advantage” under the ADA because it enabled customers to order prescriptions from the privacy of their home. According to Judge Pryor, Gil was entitled to full and equal access to Winn-Dixie’s online prescription refill services.
Second, Judge Pryor argued that, even if the majority were correct in limiting the scope of Winn-Dixie’s services to in-store prescription refills, it wrongly concluded that Gil enjoyed those services “fully and equally.” Sighted customers enjoyed greater convenience and privacy than Gil when accessing prescription refills because they could order refills online. When ordering refills in person, Gil encountered longer waits and risked exposing sensitive medical information because his disability made it difficult to know if other customers could hear the order. Winn-Dixie therefore failed to provide equal access to its prescription services, according to Judge Pryor.
Not only did the Winn-Dixie majority reject the nexus test in favor of a stricter intangible-barrier standard, but also it held definitively that websites are not public accommodations governed by the ADA.
According to the majority, the plain language of the ADA—which lists only tangible locations as places of public accommodations—bars a finding that virtual spaces could be public accommodations. The court suggested that it would not defer to the U.S. Department of Justice interpretation on the issue. For decades, the Justice Department has explained in non-binding guidance that Title III requirements apply to websites, but the Department’s efforts to embed this position in a binding regulation stalled during the Trump Administration.
The majority opinion left only the narrowest window for a court to find an ADA violation stemming from a public accommodation’s website: Had Winn-Dixie’s website been the sole means for Gil to refill prescriptions, inaccessibility might have violated the ADA.
This interpretation means that public accommodations can continue to host inaccessible websites as long as they maintain an alternate method for people with disabilities to access the services offered on those websites. But as the pandemic has demonstrated, alternate methods, such as in-person shopping, can be inconvenient or even dangerous.
Moreover, the Winn-Dixie decision means that, at least in the Eleventh Circuit, websites lacking a brick-and-mortar location can disregard ADA requirements.
Although the Supreme Court declined to review the Ninth Circuit’s earlier decision in Robles, its review of Winn-Dixie is plausible now that there is a formal circuit split over the ADA’s applicability to websites. The Court has recently blocked ADA interpretations favorable to people with disabilities and may be primed to resolve the circuit split by upholding the Eleventh Circuit’s more restrictive ADA interpretation.
Throughout the pandemic, people with and without disabilities have relied on the websites of public accommodations. Websites can be made accessible to people with different types of disabilities through intentional design, and treating websites as places or services of public accommodations comports with the ADA’s purpose. Facing increased pressure from disability rights groups, Congress could finally address the issue of accessibility online before the Supreme Court has the opportunity to review Winn-Dixie.
