Divergent judicial positions on the ADA’s application on websites lead to a possible Supreme Court case.
As the pandemic forced people to access the internet, a question circulating in the US judicial system became increasingly important: Does federal law require websites to be accessible to people with disabilities?
Earlier this spring, the U.S. Court of Appeals for the Eleventh District said no to this question and departed from the positive opinion of another district court from 2019. This resulting “division” of the district increases the chances that the US Supreme Court will intervene in the settlement of the dispute nationwide.
Under Title III of the Americans With Disabilities Act (ADA), all public housing must have reasonable accommodations to give people with disabilities full and equal access to their goods, services, facilities, privileges, and benefits. A wide range of places that provide services to the public – including hotels, restaurants, shops, gyms, and professional offices – are considered public accommodation by law.
The question is whether digital places on the internet have become functionally identical to these traditional physical places.
The ADA precedes even the earliest websites. Because of this, the law does not refer to the Internet, let alone whether websites are public entities. But now that the Internet is home to nearly 2 billion websites, people with disabilities are calling on the courts to recognize websites as public entities under the requirements of Title III. Alternatively, they argue that even if websites are not public accommodation, some websites still need to be ADA compliant since they are “services” of public accommodation.
Several federal courts have ruled on cases alleging inaccessible websites violating the ADA, but the first case to be considered at the appellate level was Robles v Domino’s Pizza, LLC.
In Robles, the plaintiff argued that Domino’s Pizza – a public accommodation facility – violated the ADA by designing and maintaining an inaccessible website. Specifically, the blind plaintiff 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 ruling, the U.S. Ninth District Court of Appeals bypassed the question of whether Domino’s website was itself a public accommodation. Instead, the court referred to the website as a “service” from Domino’s Pizza and stressed that the ADA requirements apply to the services “of” public accommodation – not just services “in” public accommodation.
The court eventually adopted a nexus test and found that the ADA applies to websites that “facilitate access to the goods and services of public accommodation”. The ADA referred to Domino’s website because the website connected customers to the restaurant’s eateries.
In April, the Eleventh Circle declined to follow Robles.
In the case of Gil v. Winn-Dixie claimed Juan Carlos Gil that he couldn’t use parts of Winn-Dixie’s website – like the recipe populate feature – because the website was incompatible with his screen reader. Gil argued that the website violated the ADA because it had a connection to Winn Dixie grocery stores, which are public accommodation.
The lower court accepted the Nexus Test of the Ninth Ward and, following a banking lawsuit, held that the ADA was being applied to the Winn-Dixie website because the website connected customers to the store’s prescription services.
But in the appeal, a divided body rejected the Nexus test and overturned the decision of the lower court.
The majority applied a standard for “intangible barriers” and found that Winn-Dixie’s website did not violate the ADA. According to the panel, the ADA only prohibits absolute service barriers. It does not require equal access to intangible privileges and benefits – such as privacy and convenience – that could result from online access to services, the court said. Because Gil was personally able to get recipe refills at Winn-Dixie stores, the website was not an absolute barrier to these services and so did not violate the ADA.
In a dissenting opinion on the Winn-Dixie decision, Judge Jill A. Pryor described the majority’s reasoning as “doubly flawed”.
First, Judge Pryor said, the majority wrongly limited the scope of the services at issue to the in-store prescription replenishment. Winn-Dixie’s online prescription offering was a service under the ADA as it allowed customers to request refills in advance. In addition, the online service was a protected “privilege” or “advantage” in the sense of the ADA, as it enabled customers to order prescriptions from home. According to Judge Pryor, Gil was entitled to full and equal access to Winn-Dixie’s online recipe 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 replenishment, they erroneously concluded that Gil provided these services “fully and equally” enjoyed. Sighted customers enjoyed more convenience and privacy than Gil in accessing prescription refills because they could order refills online. When ordering refills in person, Gil had to wait longer and risk revealing sensitive medical information because his disability made it difficult to know if other customers could hear the order. As a result, Winn-Dixie did not grant equal access to its prescribing services, according to Judge Pryor.
Not only did the Winn-Dixie majority oppose the Nexus test in favor of a stricter standard for intangible barriers, but they also firmly held that websites are not public entities subject to the ADA.
The simple language of the ADA, which only lists tangible places as places of public accommodation, forbids the majority to state that virtual spaces could be public accommodation. The court suggested not leave it to the interpretation of the US Department of Justice. For decades, the Department of Justice has issued non-binding guidelines stating that Title III requirements apply to websites, but the department’s efforts to enshrine that position in binding regulation stalled during the Trump administration.
The majority opinion gave a court the narrowest window of time to find an ADA violation stemming from a public accommodation website: If the Winn-Dixie website had been Gil’s only means of refilling prescriptions, the inaccessibility might have countered them Violate ADA.
This interpretation means that public accommodation can continue to host inaccessible websites as long as they maintain an alternative method of accessing the services offered on those websites for people with disabilities. But, as the pandemic has shown, alternative methods such as personal shopping can be inconvenient or even dangerous.
In addition, Winn-Dixie’s decision means that websites that do not have a stationary location can disregard the ADA requirements, at least in the eleventh circle.
Although the Supreme Court declined to review the earlier Robles Ninth Ward ruling, its review of Winn-Dixie is now plausible as there is a formal split over the applicability of the ADA to websites. The court recently blocked ADA interpretations favorable to people with disabilities and may be ready to resolve the split by maintaining the 11th Circle’s more restrictive ADA interpretation.
Throughout the pandemic, people with and without disabilities have relied on public accommodation websites. Websites can be made accessible to people with different types of disabilities by deliberate design, and treating websites as places or services of public accommodation is in line with the purpose of the ADA. With increasing pressure from disability rights groups, Congress could finally address the issue of accessibility online before the Supreme Court has a chance to review Winn-Dixie.
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