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Eleventh Circuit Holds Websites Are Not Place of Public Accommodation Under Title III of the ADA

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Page d'accueil Perspectives Eleventh Circuit Holds Websites Are Not Place of Public Accommodation Under Title III of the ADA
On April 7, 2021, the Eleventh Circuit Court of Appeals issued a long-awaited decision with important ramifications on the hot issue of whether Title III of the Americans with Disabilities Act (ADA) extends to website accessibility. In Gil v. Winn-Dixie, the plaintiff asserted claims for violations of the ADA relating to alleged accessibility barriers encountered on Winn-Dixie’s website based on his visual disability. Following a bench trial, the U.S. District Court for the Southern District of Florida found that Winn-Dixie’s website violated the ADA and issued an injunction requiring that Winn-Dixie conform its website to the Web Content Accessibility Guidelines 2.0 Level AA. After two and a half years of deliberation on appeal (including an oral argument in 2018 and 30 amicus briefs), the Eleventh Circuit vacated the district court’s judgment, holding that: (1) “[n]o intangible places or spaces, such as websites” are places of public accommodation under the “unambiguous and clear” statutory language of Title III of the ADA, and (2) Winn-Dixie’s website was not an “intangible barrier” to the plaintiff’s ability to access and enjoy fully and equally the goods, services, facilities, privileges, advantages, or accommodations of a physical Winn-Dixie store.

Key to the Eleventh Circuit’s holding is its rejection of the “nexus” standard adopted by the Ninth Circuit in the 2019 decision of Robles v. Domino’s Pizza, which deems websites and mobile apps places of public accommodation when they have a nexus to a brick-and-mortar store. The Eleventh Circuit opined there is “no basis for [the nexus standard] in the statute or in our precedent,” criticizing Robles as neither factually nor legally persuasive. The Winn-Dixie decision also departs from rulings in district courts in several other circuits, which consider websites to be places of public accommodation even without any nexus to a physical location. See, e.g., Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196, 200–02 (D. Mass. 2012) (concluding that Netflix’s on-demand service website is a place of public accommodation even though its services are accessed exclusively in the home); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 385 (E.D.N.Y. 2017) (“A rigid adherence to a physical nexus requirement leaves potholes of discrimination in what would otherwise be a smooth road to integration.”); Gniewkowski v. Lettuce Entertain You Enterprises, Inc., 251 F. Supp. 3d 908, 917 (W.D. Pa. 2017) (website constituted place of public accommodation under the ADA without requiring nexus to physical location).

While the Eleventh Circuit’s broad rejection of websites as a place of public accommodation is significant, the Winn-Dixie decision may be narrow, however, on the “intangible barrier” front because the website at issue did not offer any sales directly through the site. This leaves open the question of whether the Eleventh Circuit would deem websites that function as points of sale potential intangible barriers for individuals with visual impairments.

How long the Winn-Dixie decision will stand remains to be seen. We predict that the plaintiff will file a petition for rehearing en banc, given the strongly worded dissent and the fact that one of the judges in the 2-1 majority was District Court Judge Danny C. Reeves from the Eastern District of Kentucky sitting by designation. If the decision is affirmed en banc, then a petition for writ of certiorari to the U.S. Supreme Court is likely to follow in light of the circuit split. Currently, the Third, Sixth, and Eleventh Circuits interpret Title III of the ADA as applying to physical places of accommodation, while the First, Seventh, and Ninth Circuits have expanded the statute’s reach to websites. Until then, the plaintiffs’ bar can be expected to continue its onslaught of website accessibility litigation in friendlier circuits.

Client Alert 2021-102