By Carl I. S. Mueller, Esq., The Maloney Firm, APC

In certain parts of the United States, including California, there are increasing numbers of lawsuits against business owners claiming that the businesses’ websites are not accessible to those with disabilities, and therefore violate the Americans with Disabilities Act (“ADA”). A recent decision by the 11^th Circuit of the United States Court of Appeals, Gil v. Winn-Dixie Stores, Inc.,____ F.3d _____ (11^th Cir. 2021), 2021 WL 1289906, held that “public accommodations are limited to actual, physical places,” in finding that the plaintiff, Juan Carlos Gil, a man with a visual disability, could not bring a claim against Winn-Dixie Stores, Inc. under the ADA on the grounds that Winn-Dixie’s website was not compatible with Gil’s screen-reader as a matter of law. To summarize, the Court considered two possible legal theories of liability and rejected both.

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First, the Court considered Gil’s claims that Winn-Dixie’s website was “a place of public accommodation in and of itself,” and therefore must comply with the requirements of the ADA. In making this inquiry, the Court considered the definition of “public accommodation” within the language of the ADA. Reviewing the examples of “public accommodations” therein, the Court found that “[n]o intangible places or spaces, such as websites, are listed,” and the Court would therefore not expand the language of the statute to include websites.

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Second, the Court considered whether Winn-Dixie’s website could otherwise violate the ADA, even if not a public accommodation. The ADA disallows “‘intangible barriers,’ that prevent an individual from fully and equally enjoying the goods, services, privileges, or advantages of a place of public accommodation.”  In short, the Court found Gil still could not make a case against Winn-Dixie because he admitted that his inability to use Winn-Dixie’s website did not result in a barrier to actually obtaining the services provided at Winn-Dixie’s brick-and-mortar locations. Notably, this determination rested on the fact that Winn-Dixie offered goods for sale only at its brick-and-mortar locations, and all services it offered via its website could still be obtained at its physical locations.

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However, the decision does not completely foreclose the possibility of website liability under the ADA for those within the jurisdiction of the 11^th Circuit. The decision specifically states that it rests on the premise that Winn-Dixie’s website does not allow the ability to make purchases, and no services are available through the Winn-Dixie website that are not otherwise available at Winn-Dixie’s stores. As such, ADA liability may still exist for those companies that offer sales or services through their websites. Considering the high number of companies that now offer such services as a result of COVID-19 limitations, ADA litigation could very well continue in the 11^th Circuit.

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Closer to home, the Gil v. Winn-Dixie Stores, Inc. decision will not directly affect California ADA litigation in the near term. California has explicitly adopted the “nexus” test as set out by the 9^th Circuit in Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9^th Cir. 2019), which will remain the law of the land in California until that standard is explicitly rejected by the California Supreme Court or the United States Supreme Court. See Thurston v. Midvale Corp, 39 Cal.App.5th 634 (2019). Under the same, Californians face liability under the ADA and Unruh Act for websites that are inaccessible to those with disabilities.

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For those keeping track, the current split for United States Appellate Circuits’ rulings for whether websites can create liability under the ADA are as follows: The Third and Eleventh Circuit do not allow for liability for website accessibility under the ADA. As an intermediate position, the Sixth and Ninth Circuits have found that a “nexus” must exist between the website and a physical place of public accommodation for an application of the ADA to occur. In contrast, the First, Second, and Seventh Circuits have created the most expansive application of the ADA, finding that there is no requirement for a physical location for the application of the ADA. In short, these varying rules, clearly discussed in the Gil decision, beg for clarification by the U.S. Supreme Court. Currently, a national business provider is left to deal with different restrictions in different jurisdictions.

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Litigators and business owners will be watching this case closely to see if this is the one that gets considered by the Supreme Court for the purposes of issuing a nationwide rule that will allow consistent application of the ADA (and by extension, California’s Unruh Act) to website accessibility.

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About the Author:

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Carl Mueller is a business litigation attorney that represents clients in all phases of civil litigation. Mr. Mueller’s practice has a focus on attorney-client disputes of all kinds. If you have questions regarding this article contact Carl Mueller at cmueller@maloneyfirm.com.

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