September 13, 2021
Most business owners with websites have heard the buzz around ADA compliance by now. As more lawsuits arise related to it, we decided to take a closer look at ADA and the important lawsuits in recent years that help us digest the scope of this legislation. Let’s dive into two ADA cases.
The Americans with Disabilities Act (ADA) has been in effect since 1990. It is essentially a civil rights law that requires, among other things, those with disabilities to have the same right of access to public places as those without disabilities. To achieve this goal, the ADA requires businesses that are open to the public to provide reasonable accommodation for those with disabilities.
Reasonable accommodations include things like ramps in addition to stairs for entry to buildings and bathroom stalls wide enough to accommodate wheelchairs. Similar accommodations must be provided for those with speech, hearing, or vision impairments.
In 2010, the law was expanded to include standards for Accessible Design. This means that information and communications technology must also be accessible to those with disabilities.
Despite Web Content Accessibility Guidelines (WCAG) being promulgated by the World Wide Web Consortium, what amounts to “website accessibility” under the ADA remains a mystery. Unlike specific accessibility regulations for physical locations, there are no specific regulations for websites.
Thousands of lawsuits have been filed through the years with plaintiffs hoping to get the courts to articulate what makes a website non-compliant with the ADA accommodations requirements. Many of these cases result in ADA lawsuit settlements. More than 1,660 lawsuits were filed in the first six months of 2021 with plaintiffs alleging ADA violations.
Earlier in 2021, two long-awaited decisions were issued by different courts in different jurisdictions concerning the applicability of Title III of the ADA to websites of retail stores. Both cases involved visually impaired plaintiffs. Both plaintiffs used “screen reader software” to give them access in general to websites. Both plaintiffs alleged that the retail company’s website about which they were complaining was inaccessible to them in violation of the ADA since their screen reader software did not work.
The U.S. Court of Appeals for the Eleventh Circuit decided the ADA does not apply to websites and only to physical locations. The U.S. District Court for the Central District of Los Angeles, which is under the umbrella of the U.S. Court of Appeals for the Ninth Circuit, came to the opposite conclusion, holding that the ADA does apply to websites.
The First, Second, and Seventh Circuits have all said that the ADA does not just apply to physical locations. This disagreement between the circuits will most likely give rise to the Supreme Court of the United States (SCOTUS) eventually being asked to resolve the dispute and make a decision binding on all jurisdictions.
In Juan Carlos Gil v. Winn-Dixie Stores, Inc., decided April 7, 2021, the U.S. Court of Appeals for the Eleventh Circuit, in a 2-1 decision, held that even though the Winn-Dixie website was inaccessible to Mr. Gil, since it was incompatible with his screen reader software, the inaccessibility did not violate the ADA.
The Circuit Court found, in response to Mr. Gil's ADA website accessibility lawsuit, that the ADA describes 12 types of tangible physical spaces that provide public access, so must also provide accommodations to make them equally accessible to those with disabilities. Since a website is an intangible space, the Court held it is not considered a place of public accommodation under the ADA.
The Circuit Court noted that it recognized that Mr. Gil suffered a great inconvenience but held that
“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.”
The dissent noted that visually-impaired customers couldn’t read the website. It was incompatible with screen-reading technology that would enable reading. “Winn-Dixie’s visually-impaired customers therefore were treated differently than its sighted customers and denied the full and equal enjoyment of services, privileges, and advantages offered by Winn-Dixie stores."
The dissenting judge wrote that “this inferior treatment amounted to disability discrimination by the operator of a place of public accommodation under Title III of the ADA.”
Alas, the case is not over yet.
Mr. Gil petitioned the Circuit Court for a rehearing and a rehearing en banc, meaning he wants the entire 11th Circuit panel of judges to hear the case. Winn-Dixie has opposed that petition.
As of September 10, 2021, there had been no decision on whether the 11th Circuit Court would rehear the case.
In another ADA website compliance lawsuit, filed by Guillermo Robles in September 2016 against Domino’s Pizza, the plaintiff claimed that Domino’s violated the American Disabilities Act (ADA) by having a website inaccessible to him, a blind man. The case began in the U.S. District Court for the Central District of California, which dismissed the case. Gil appealed and the U.S. Court of Appeals for the Ninth Circuit reversed the dismissal. Domino’s petition to the SCOTUS for reversal of the Ninth Circuit reinstatement was denied.
Finally, the case came back to the District Court. In June 2021, five years after the case was first filed, the District Court gave the win to Robles and ruled that Domino’s violated Title III of the ADA by having a website not fully accessible to the blind. The District Court ordered Domino’s to “bring its website into compliance with the WCAG 2.0 guidelines…”
The District Court relied on Ninth Circuit precedent in making its decision. That Court has said that web-only businesses are not covered by the ADA, but websites that have a nexus to a physical place of public accommodation are covered. Since the website, “impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation,” the website's inaccessibility to the blind violated the ADA.
Relying on Ninth Circuit precedent, the District Court noted that, “where a website and app facilitate access to the goods and services of a place of public accommodation,” as is the case.
Clearly, the law concerning compliance requirements for websites is not yet settled.
Do not wait for a lawsuit to be filed against your business. Contact Main Event’s ADA Partner, accessiBE, now for a special offer on checking whether your website is ADA compliant.