Legal activists for the disabled are filing an increasing number of successful website accessibility challenges. Among the companies sued: Hobby Lobby, eBay, Blick Art Materials, Five Guys, Target, Winn-Dixie, etc. Very soon, it may be the law that commercial websites must be compliant with the Americans With Disabilities Act (“ADA”).
Background: The Case Of Gil v. Winn Dixie Stores, Inc.
In June 2017, a federal judge in Florida conducted what is believed to be the first-ever trial and first-ever victory for a plaintiff concerning the accessibility of a commercial website under the ADA. See news report here. Gil v. Winn-Dixie Stores, Inc., No. 16-23020-Civ-Scola (S.D. Fla. 2017).
The plaintiff sued Winn-Dixie Stores, Inc. (“Winn-Dixie”) for violation of the ADA. Winn-Dixie is a regional grocery store chain. Mr. Gil alleged that the store’s website, www.winndixie.com, is inaccessible to the visually impaired, including himself. After a two-day trial, the judge ruled in favor of Mr. Gil. The judge ruled that an injunction should issue requiring Winn-Dixie’s website to become ADA compliant. The judge further required that Winn-Dixie set aside $250,000 to update the website and also awarded attorneys’ fees and costs. No money damages are available under Title III of the ADA. Specific additional rulings on the injunction and the amount of attorneys’ fees are pending.
Is a Website a “Place of Public Accommodation” for Purposes of the ADA?
In general, the ADA prohibits the owner of a “place of public accommodation” from discriminating on the basis of handicap or disability. 42 U.S.C. § 12182(a). There is no question that Winn-Dixie’s physical stores are “places of public accommodation” for purposes of the ADA. However, what about the website? The website does not physically exist anywhere, or at least anywhere to which human beings can travel.
So, then the question becomes whether the ADA limits a “place of public accommodation” to a physical space. So far, the courts have split on this question. The debate is whether “services” are covered and whether “services” require a “physical space.” The recent trend is to say “yes, websites are covered by the ADA” for commercial retailers with so-called brick and mortar stores.
Some History: Insurance Policies and the ADA
Cases involving insurance policies were among the first types to address the question of the ADA and intangible goods, services, and non-physical spaces. For example, in Parker v. Metropolitan Life Ins. Co., 121 F. 3d 1006 (6th Circuit 1997), the plaintiff sued because her disability insurance policies provided more benefits for physical disability than for mental disability. During her employment, she became disabled due to severe depression. She sued for violation of Title III of the ADA related to public accommodations. The trial court granted summary judgment against the plaintiff on the grounds that Title III only covers discrimination in the physical access to goods and services.
The Sixth Circuit affirmed saying::
“While we agree that an insurance office is a public accommodation as expressly set forth in § 12181(7), plaintiff did not seek the goods and services of an insurance office. Rather, Parker accessed a benefit plan provided by her private employer and issued by MetLife. A benefit plan offered by an employer is not a good offered by a place of public accommodation. As is evident by § 12187(7), a public accommodation is a physical place …”
See also Stoutenborough v. National Football League, Inc., 59 F.3d 580 (6th Cir. 1995) (ADA Title III did not apply to live NFL football broadcast; such did not exist in a physical place).
The Third Circuit concurred. Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir.1998) (same as Parker).
The Ninth Circuit concurred. Weyer v. Twentieth Century Fox Film Corp., 198 F. 3d 1104 (9th Cir. 2000) (same as Parker).
The First Circuit, however, disagreed. In Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, Inc., 37 F.3d 12 (1st Cir. 1994), the health benefit plan offered by the employer contained a $25,000 cap on benefits for AIDS related illnesses while the plan provided $1,000,000 in coverage for any other illness. The plaintiff brought suit under various theories including violation of Title III of the ADA. The First Circuit held that since “services” were clearly contemplated by Title III, Title III applies to insurance policies. The court parsed 42 U.S.C. § 12181(7)(F) in particular and noted that the list includes a “travel service,” a “shoe repair service,” an “office of an accountant, or lawyer,” an “insurance office,” a “professional office of a healthcare provider,” and other “service establishments.” According to the court, the plain meaning of those terms does not require a “public accommodations” to have physical structures for persons to enter.
Websites and ADA Compliance: The Developing Rule
As can be seen by the above discussion, the law is unsettled and it continues to be so with respect to website accessibility. That being said, there is a rule that seems to be developing which is this:
Where a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations, the website is a service of a public accommodation and is covered by the ADA.
This is the holding of the Winn-Dixie case discussed above. Because the Winn-Dixie website was integrated into the marketing for the physical stores, the judge considered the website a “service” related to a physical place. Therefore, the court held that Title III of the ADA applied to the website.
For similar results, see Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006) (“… to the extent that plaintiffs allege that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs state a claim …” under Title III of the ADA).
By contrast, see Earll v. Ebay, Inc., 599 Fed. App’x. 695 (9th Cir. 2015) (“Because eBay’s services are not connected to any “actual, physical place,” eBay is not subject to the ADA.”)
Some federal judges are going further and holding that there is NO requirement for a nexus to a physical store. See Andrews v. Blick Art Materials, LLC, No. 17-CV-767 (US Dist. E.D.N.Y. 2017) (holding Title III of the ADA applicable regardless of nexus to physical stores; “A rigid adherence to a physical nexus requirement leaves potholes of discrimination in what would otherwise be a smooth road to integration.”); and Markett v. Five Guys Enterprises LLC, 1:17-cv-00788-KBF (US Dist. S.D.N.Y. 2017) (Mem. Order Denying Def. Mot. To Dismiss) (“[T]he text and purposes of the ADA, as well as the breadth of federal appellate decisions, suggest that defendant’s website is covered under the ADA .. as its own place of public accommodation …”).
As we wrote recently, there are very few businesses that can function without a web presence. Almost every business uses its website to drive traffic to its physical stores. As such, web accessibility is going to become an increasingly important issue, and not just for the visually impaired, either.
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