Signed into law in 1990, the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et. seq., declares that “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society.”[1] According to the Southern District of Florida, websites may well be one of those aspects.
Title III of the ADA
To begin, some background information: To protect the rights of disabled individuals and to facilitate their participation in “all aspects of society,” the ADA prohibits discrimination against such individuals, much as other laws afford heightened civil rights protections to people on the basis of race, color, sex, national origin, age, and/or religion.
The ADA is divided into five “titles”[2] or sections that each relate to different areas of public life,[3] including Title III, which regulates “public accommodations” and sets the minimum standards for accessibility with regard to alterations, renovations, and new construction. Title III prohibits the owner of a place of “public accommodation” from discriminating “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 . . . .” 42 U.S.C. § 12182(a). In plain language, Title III means that business owners have to make reasonable modifications to their usual way of doing things when serving people with disabilities.
What is a “Public Accommodation”?
But does Title III apply to all businesses? The ADA defines “public accommodation” broadly, and includes in its definition private entities and facilities whose operations affect commerce and fall into one of twelve very broad categories, which include things like “place[s] of exhibition or entertainment,” “sales or rental establishment[s],” and “service establishment[s].”[4]
Moreover, federal regulations define the term “facility” as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. § 36.104. In short, most privately-owned business that sell goods or provide services are “public accommodations” and they are required to provide the protections and access required by Title III in all of their facilities.
If you own your own business, you probably know all of this already. You already know about sidewalk heights and parking lot requirements and bathroom stall configurations. You know about allowing service animals in your store and making sure your staff is trained on communicating effectively with customers who are blind or have hearing or speech disabilities. For the conscientious business owner, Title III’s compliance requirements are standard operating procedure. But what you may not know is that your website might have to comply with Title III too.
Gil v. Winn Dixie Stores, Inc.
In 2017, Juan Carlos Gil filed a lawsuit against Winn–Dixie Stores, Inc., alleging Winn-Dixie’s website is inaccessible to the visually impaired, in violation of Title III of the ADA. See Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315 (S.D. Fla. 2017). For example, Mr. Gil (who utilizes access technology software to operate a computer but cannot see the computer screen) claimed that Winn-Dixie’s website would not interface with his screen-reader software to allow him to refill prescriptions or find coupons. See Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1343-44 (S.D. Fla. 2017).
Winn-Dixie admitted that its physical grocery stores and pharmacies are places of public accommodation but denied that its website was also a “public accommodation” under the ADA. 242 F. Supp. 3d at 318.
ADA Website Compliance Lawsuits
While Gil v. Winn Dixie Stores, Inc. is not the first case where the application of Title III to websites came into play, it is one of the first in Florida where a court confirmed that the website in question was inaccessible under Title III. It also provides Florida business with a thorough summary of where Florida’s federal courts seem to be headed with regard to this issue.
As the Gil Court explained, there is currently a “split” in America’s federal circuit courts about the ADA and its application to websites. Id. at 1319. In the First, Second, and Seventh Circuits, the ADA can apply to a website independent of any connection between the website and a physical place; in the Third, Sixth, and Ninth Circuits, places of public accommodation must be physical places, and goods and services provided by a public accommodation must have a sufficient nexus to a physical place in order to be covered by the ADA. Id.
The Eleventh Circuit—the circuit that Florida’s district courts answer to—has not yet addressed whether websites are public accommodations for purposes of the ADA. However, district courts within the Eleventh Circuit have, and those district courts have generally held:
(1) the ADA does not apply to a website that is wholly unconnected to a physical location, but;
(2) the ADA does apply to a website if a plaintiff can establish a “nexus between the website and the physical premises of a public accommodation.” Id.
The Court’s Decision in Gil
The Southern District of Florida eventually found in favor of Mr. Gil, stating that while the “Court need not decide whether Winn–Dixie’s website is a public accommodation in and of itself,” the “factual findings demonstrate that the website is heavily integrated with Winn–Dixie’s physical store locations and operates as a gateway to the physical store locations.” 257 F. Supp. 3d at 1349.
That integration and connection to Winn-Dixie’s physical stores made all the difference to the Southern District of Florida, and the Gil Court ruled Winn–Dixie had violated the ADA:
Although Winn–Dixie argues that Gil has not been denied access to Winn–Dixie’s physical store locations as a result of the inaccessibility of the website, the ADA does not merely require physical access to a place of public accommodation. Rather, the ADA requires that disabled individuals be provided “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . .” 42 U.S.C. § 12182(a). The services offered on Winn–Dixie’s website, such as the online pharmacy management system, the ability to access digital coupons that link automatically to a customer’s rewards card, and the ability to find store locations, are undoubtedly services, privileges, advantages, and accommodations offered by Winn–Dixie’s physical store locations. These services, privileges, advantages, and accommodations are especially important for visually impaired individuals since it is difficult, if not impossible, for such individuals to use paper coupons found in newspapers or in the grocery stores, to locate the physical stores by other means, and to physically go to a pharmacy location in order to fill prescriptions.
The factual findings demonstrate that Winn–Dixie’s website is inaccessible to visually impaired individuals who must use screen reader software. Therefore, Winn–Dixie has violated the ADA because the inaccessibility of its website has denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that Winn–Dixie offers to its sighted customers.
Id.
What Does Gil Mean for Business Owners in Florida?
The Gil decision likely means that there are more lawsuits heading our way.
The Gil decision signals that at least some federal courts in Florida are willing to apply Title III of the ADA broadly enough to encompass a website if a business has a brick-and-mortar location. Since virtually all brick-and-mortar businesses also operate websites, but most business owners are not yet aware that their websites could expose them to lawsuits like Gil, there is likely to be an uptick in the number of Title III cases filed over the next few years.
Moreover, while the ADA does not provide damages to plaintiffs, a court can order businesses to take the steps required to make the website compliant, and it can also award attorneys’ fees to the plaintiff’s lawyer—which could be substantial.
What can business owners do right now?
At the moment, the Web Content Accessibility Guidelines 2.0 (the “WCAG”), which the Gil Court discussed in its opinions, is generally recognized as the best guidance regarding website and mobile application compliance with the ADA.
Familiarize yourself with the WCAG, work with your information technology department to evaluate your current level of compliance, and then contact qualified legal counsel to develop a strategy to protect your business.
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[1] On January 1, 2009, a large-scale amendment to the ADA, the Americans with Disabilities Act Amendments Act (ADAAA) became effective.
[2] Title I, regulating employment, essentially requires covered employers to protect the rights of persons with disabilities in all aspects of employment, including by providing reasonable accommodations.
Title II, regulating public services provided by state and local governments (including transportation services), requires public entities make their programs, services, and activities accessible to individuals with disabilities.
Title IV regulating telecommunications, requires telephone and internet companies to provide a nationwide system of relay services, which allow individuals with hearing or speech disabilities to communicate.
Title V contains various miscellaneous provisions applicable to the other Titles.
[3] Titles I, II, III, and V of the original law are codified in Title 42, chapter 126, of the United States Code beginning at § 12101. Title IV of the original law is codified in Title 47, chapter 5, of the United States Code.
[4] 42 U.S.C. § 12181(7) identifies the twelve categories as follows:
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
