In a win for businesses, on April 7, 2021, the U.S. Court of Appeals for the Eleventh Circuit held in Juan Carlos Gil v. Winn-Dixie Stores, Inc., that websites are not “places of public accommodation” under the Americans with Disabilities Act (ADA) and rejected the “nexus” standard that has been adopted by several other federal circuits. This long-awaited decision follows a proliferation of website accessibility cases alleging that businesses have discriminated against disabled individuals in violation of the ADA by operating or maintaining websites that are not fully accessible to blind and visually impaired individuals.
The ADA prohibits discrimination against individuals 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. The term “place of public accommodation” is key. At issue in many of these website accessibility cases is whether a website is a place of public accommodation under the ADA. The Eleventh Circuit answered that question in the negative, relying on the fact that the statutory language in the ADA defining a “place of public accommodation” is unambiguous and clear. Specifically, the ADA lists 12 types of tangible, physical locations that constitute places of public accommodation, none of which are intangible places or spaces that are akin to websites.
But the analysis does not end there. The Eleventh Circuit previously held in Rendon v. Valleycrest Productions, Ltd., that discrimination under the ADA includes intangible barriers that restrict an individual’s ability to enjoy an entity’s goods, services or privileges. Thus, Gil took his claim one step further, arguing that Winn-Dixie’s website still violated the ADA because its inaccessibility served as an intangible barrier to his access to the services, privileges and advantages of Winn-Dixie’s physical locations. The Eleventh Circuit rejected this argument. First, Winn-Dixie’s website was a limited-use website, such that purchases could not be made via the website and any interactions initiated on the website (such as ordering or refilling prescriptions) needed to be completed at a physical store. Second, nothing prevented Gil from shopping at a physical store. And third, although customers could use the website to link digital coupons to their Winn-Dixie rewards card so coupons would be applied automatically at checkout at a physical store, Gil was able to use paper coupons at checkout.
In concluding that Gil’s inability to access the website did not violate the ADA, the Eleventh Circuit rejected the commonly advanced argument that blind and visually impaired individuals are treated differently, in violation of the ADA, where a website lacks an auxiliary aid. Indeed, under the ADA, discrimination generally includes a failure to take steps to ensure that individuals with disabilities are not excluded or treated differently because of the absence of an auxiliary aid or service. But the Eleventh Circuit emphasized that, because the website is not a place of public accommodation, Gil would have had to demonstrate that the inaccessibility of the website served as an intangible barrier to Gil’s ability to communicate with a physical store. That he could not do, given the fact that he fully and equally enjoyed going to a physical store for at least 15 years. Moreover, while providing auxiliary aids and services might be reasonable, it does not automatically mean that the auxiliary aids and services are necessary. The Eleventh Circuit emphasized that the ADA only requires necessary auxiliary aids and services. Gil had not claimed, however, that the absence of an auxiliary aid prevented him from communicating with or accessing Winn-Dixie’s physical locations.
Finally, the Eleventh Circuit also rejected the adoption of the nexus standard, commonly advanced from holdings in other federal circuits. The general argument under the nexus standard is that a website can constitute a place of public accommodation as long as it has a nexus to a physical location. But the Eleventh Circuit concluded that there was no basis for a nexus standard in the statute or in the Eleventh Circuit’s precedent.
The full opinion can be located here. Given the difference of opinions between the various federal circuits, however, we can likely expect Gil to file a petition for writ of certiorari in the Supreme Court of the United States.
BakerHostetler has extensive experience defending website accessibility claims. In addition to representing clients in such claims, BakerHostetler prepared and filed the amicus curiae brief filed in support of Winn-Dixie on behalf of 13 associations, including the Restaurant Law Center, the American Hotel & Lodging Association, the Chamber of Commerce of the United States of America, and the National Retail Federation. If your company is facing website accessibility litigation and you need assistance, please contact one of our attorneys.