Need for Clarity Becomes Even More Urgent Amid Competing Interpretations, Lack of Guidance
The 11th Circuit recently delivered a blow to serial plaintiffs by holding that a website is not a place of public accommodation for purposes of Title III of the Americans with Disabilities Act (ADA). The case, Gil v. Winn-Dixie Stores, Inc.,1 widens the nationwide circuit split as companies impatiently await guidance from the Department of Justice (DOJ) on the applicability of Title III to websites. Though the DOJ has thus far been reluctant to issue regulations, despite Congress’ pleas, that may change with the new administration. Guidance can’t come soon enough—another updated version (version 2.2) of the Web Content Accessibility Guidelines (WCAG), developed by a private group called the “World Wide Web Consortium” (W3C) and used as a measuring stick by many courts for accessibility standards in ADA cases, is scheduled for release soon, underscoring the fact that compliance with website accessibility standards is a moving target.
There are currently three schools of thought as to whether a website constitutes a place of public accommodation for purposes of Title III: (1) a website is always a place of public accommodation; (2) a website is never a place of public accommodation; and (3) a website can be a place of public accommodation if it has a sufficient nexus to a physical location. Gil represents a flat-out rejection of the nexus theory, unequivocally holding that Title III’s applicability is currently limited to physical locations.
At issue in Gil was the plaintiff’s inability to submit a prescription online or download online coupons via the Winn-Dixie website, due to the website’s alleged inaccessibility. The district court found that Winn-Dixie’s website was a place of public accommodation because of its nexus to physical Winn-Dixie stores, operating as a “gateway” to the physical store locations. The district court therefore ordered, among other things, that Winn-Dixie achieve compliance with WCAG 2.0 standards, the version of WCAG in effect at the time the lawsuit was filed in July 2016. The 11th Circuit reversed the district court, rejecting the nexus theory and holding that a website is not a place of public accommodation under Title III.
Evaluating the plaintiff’s claims, the 11th Circuit applied a strict textualist approach to Title III—i.e., because a “website” is not one of the 12 enumerated categories of “places of public accommodation” delineated in the statutory language of Title III, all of which are “tangible, physical places,” it is not a place of public accommodation.2 The court reasoned that, absent congressional action amending Title III to include websites, the plaintiff’s claim that a website is a place of public accommodation could not stand.3 Although the DOJ has been tasked with—and at varying times has promised to engage in—rulemaking on this subject, none has thus far been forthcoming.
The 11th Circuit went on to consider the plaintiff’s alternative argument that the absence of auxiliary aids on Winn-Dixie’s websites (i.e., its incompatibility with screen reader software) served as an intangible barrier that resulted in him being denied goods, services, privileges or advantages of Winn-Dixie’s physical stores in violation of the ADA. Though the plaintiff argued that he preferred to submit a prescription online for privacy purposes and because it saved time, the court rejected this argument and found that “it is clear that Title III will not bear such a sweeping interpretation” of “intangible barriers.”4 The court noted that although the plaintiff alleged he “could not comprehend the website in an effective manner due to the absence of an auxiliary aid,” he did not assert that he was denied effective communication with or access to the physical store or the services provided therein. The court noted that the plaintiff had for many years made frequent in-person trips to the physical Winn-Dixie store, demonstrating that the inaccessible website did not create a barrier under the ADA.
Further, the court found that the 9th Circuit’s holding in Robles v. Domino’s Pizza, LLC,5 which held that a website could be a place of public accommodation under the nexus theory, was factually distinguishable because the Domino’s website allowed patrons to order pizza. Conversely, because no goods or services were available for purchase on Winn-Dixie’s website, which according to the court had “limited functionality” (because, for instance, although prescription refills could be ordered online, individuals still had to pick them up in-store), Robles was deemed legally and factually distinguishable. Yet this rationale leaves several unanswered questions, not least of which is whether a visually impaired customer is entitled to Title III protections for online shopping, which has become increasingly common in the COVID-19 era (including on Winn-Dixie’s own website, which now offers online shopping and delivery of groceries and prescriptions). Though it seems feasible to assume that inaccessibility of a website that actually offers purchases could constitute an intangible barrier, because the 11th Circuit rejected the nexus theory entirely, it is not clear whether that factual distinction would move the needle toward a finding that websites are public accommodations under Title III. Ultimately, the discordant views from the varying circuits are setting up a potential battle to be resolved by the Supreme Court.
In that vein, a recent concurring opinion from Justice Thomas granting a petition for certiorari provides potential insight into the Supreme Court’s position if and when this issue reaches that court. The case, Biden v. Knight First Amendment Institute at Columbia University,6 involves whether former President Donald Trump violated the First Amendment by blocking individuals from his Twitter feed—and whether the Twitter feed constitutes a “public forum,” as the 2nd Circuit held. In his concurring opinion for granting the petition for certiorari, Justice Thomas reasoned, in dicta, that “a company ordinarily is a place of public accommodation if it provides lodging, food, entertainment, or other services to the public ... in general. Twitter and other digital platforms bear resemblance to that definition.”7 Justice Thomas also recognized that circuit courts are split as to whether websites are public accommodations under Title III of the ADA.8 Although this is not controlling authority by any means, the mere mention of this issue by a conservative Supreme Court justice appears to indicate that, should it reach the Supreme Court, the decision would likely not be a partisan split.
In any case, uncertainty continues to prevail. (Indeed, the 10th Circuit has yet to address the issue.) And with the imminent rollout of WCAG 2.2, the need for clarity from the Department of Justice, Congress and/or the Supreme Court is more critical than ever.
In the end, the Gil decision will have limited impact on pending and future litigation outside of the 11th Circuit, other than perhaps to hasten Supreme Court review. Websites operate without regard to state borders, allowing plaintiffs to forum-shop and simply avoid the 11th Circuit and other unfavorable jurisdictions. The best course of action for businesses at this point, in light of the continuing uncertainty, is to ensure that their websites comply with current WCAG standards and closely monitor this issue.
1 No. 17-13467, 2021 WL 1289906 (11th Cir. April 7, 2021).
2 Citing 42 U.S.C. § 12181(7).
3Id. at *12.
4Id. at *10.
5 913 F.3d 898 (9th Cir.), cert. denied, 140 S. Ct. 122 (2019).
6 141 S. Ct. 1220 (Mem.) (April 5, 2021) (Thomas, J., concurring).
7 Id. at 1225 (Thomas, J., concurring) (emphasis added).
8 Id. (Thomas, J., concurring).
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