This article appeared in the September 2021 issue of South Carolina Employment Law Letter.

Title III of the Americans with Disabilities Act (“ADA”) provides that “[n]o individual shall be discriminated against 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…” In Gil v. Winn-Dixie Stores, Inc., the Eleventh Circuit for the first time addressed whether websites are included under ADA Title III’s prohibition against discrimination on the basis of disability in places of public accommodation.  The court concluded that ADA Title III is limited to actual physical places and does not cover websites and that Winn-Dixie’s limited use website did not function as an intangible barrier to accessing the goods or services of its physical stores.

The plaintiff, who was legally blind, brought suit against Winn-Dixie because he was allegedly unable to use the grocery store’s website. The plaintiff alleged he frequently shopped at Winn-Dixie’s physical grocery stores in the past and sought to use the website to refill his prescriptions and obtain coupons. The plaintiff claimed, however, the website was not compatible with screen reader software that he needed to access the website and vocalize the site’s content. The plaintiff alleged that Winn-Dixie had violated Title III of the ADA because the website was inaccessible to visually impaired individuals. In response, Winn-Dixie argued it had not violated the ADA because its website was not a “place of public accommodation.” It stated that, unlike its physical stores, the website lacked a physical location or sufficient nexus to any physical location to be considered a public accommodation.

The district court ruled in the plaintiff’s favor and concluded that Winn-Dixie had violated the plaintiff’s rights under Title III of the ADA. The court stated, however, it “need not determine whether Winn-Dixie’s website is a public accommodation in and of itself” because the website was “heavily integrated with, and in many ways operates as a gateway to Winn-Dixie’s physical store locations.” The district court granted the plaintiff injunctive relief and required Winn-Dixie to make its website conform to certain accessibility guidelines. Winn-Dixie appealed.

On appeal, the Eleventh Circuit reversed the lower court’s decision and held that websites are not “public accommodations” subject to Title III of the ADA. The court determined that the text of Title III is unambiguous and clear. It describes twelve types of locations that are considered public accommodations and all of them are “tangible, physical locations.” Because websites are intangible, they do not fall under the definition of public accommodations. Thus, the court rejected the nexus standard and held that the plaintiff’s inability to access the website was not a violation of Title III because the website was not a place of public accommodation.

Not only did the court determine that the website was not a place of public accommodation, but it also ruled that it did not constitute an “intangible barrier” to the Plaintiff’s ability to access and enjoy Winn-Dixie’s physical stores. The court reached this decision because the website only had limited functionality and was not a point of sale. Any function that could be initiated on the website could still be accomplished in stores and nothing prevented the plaintiff from visiting the physical stores as he had done for years. Accordingly, the court concluded that the plaintiff’s inability to access the website did not violate Title III of the ADA. The court’s reasoning left open the possibility that the inability to access other websites with more functionality could serve as an impermissible intangible barrier to the full enjoyment of a physical place of public accommodation.

The Eleventh Circuit’s decision in Gil deepens a circuit split and applies a heavier burden to plaintiffs seeking to assert website accessibility claims under ADA Title III. Other circuits that have considered the issue have implemented a lower standard for determining when inaccessible websites may constitute a violation of the ADA.  For example, the Ninth Circuit in Robles v. Domino’s Pizza determined that a plaintiff can show a website falls within the ADA’s public accommodation provision by demonstrating that the website has a sufficient nexus to a physical place. The Eleventh Circuit in Gil rejected this standard and instead required plaintiffs to prove that the website prevents them from accessing the goods, services, privileges, or advantages of a physical place of public accommodation.

The deepening of the circuit split may make it more likely for the Supreme Court to take up this issue in the future to resolve the current confusion. For now at least, the Gil decision makes it more difficult for plaintiffs to succeed on website accessibility claims in the Eleventh Circuit.  Businesses should continue to pay attention to any updates in this line of cases and ensure their websites are in compliance with any applicable ADA requirements.