This is, by far, the most important ADA decision so far in 2021.

And it’s not at all what you think.

Title III of the ADA

When most of you consider the Americans with Disabilities Act, you probably think of employees with disabilities and reasonable accommodations. That’s Title I of the ADA.

But, Title III of the ADA is equally important to your business. Title III prohibits disability discrimination based in places of public accommodations (businesses that are generally open to the public). The statute provides 12 categories of public accommodations with at least one thing in common – bricks and mortar.

But, that hasn’t stopped some plaintiffs from claiming that Title III’s definition of public accommodations also includes websites.

A supermarket with a website.

An individual with a visual disability was a long-time customer of a southern-based supermarket chain. This supermarket chain also has a website. The website offered users the ability to re-fill existing prescriptions for in-store pickup and link digital manufacturer coupons to a rewards card for use at the physical store.

Upon learning of the website, the disabled individual visited the site and soon learned that it was incompatible with his screen reader software, which he uses to access websites and vocalize the site’s content.

In 2016, the individual sued the supermarket chain. He made two claims under the ADA. First, he claimed that the incompatible website was a place of public accommodation that did not comply with Title III. Second, he claimed that the website otherwise violates Title III, even if not a place of public accommodation.

Is a website a place of public accommodation?

No. At least not in the Eleventh Circuit.

With a strict, textualist read, the federal appellate court concluded (here) that “the statutory language in Title III of the ADA defining public accommodation is unambiguous and clear.”

The court continued:

It describes twelve types of locations that are public accommodations. All of these listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed. Thus, pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places. Necessarily then, websites are not a place of public accommodation under Title III of the ADA.

Did the supermarket’s website otherwise violate Title III?

Based on the specific facts of this case (more on this below), the court held that it did not:

Winn-Dixie’s limited use website, although inaccessible by individuals who are visually disabled, does not function as an intangible barrier to an individual with a visual disability accessing the goods, services, privileges, or advantages of Winn-Dixie’s physical stores (the operative place of public accommodation). Specifically, Winn-Dixie’s website has only limited functionality. Most importantly, it is not a point of sale; all purchases must occur at the store. Further, all interactions with Winn-Dixie which can be (although need not be) initiated on the website must be completed in-store: prescription pick-ups and redemption of coupons. And nothing prevents Gil from shopping at the physical store. In fact, he had done so for many years before he freely chose to stop shopping there. Although Gil was not always happy with the speed or privacy of the service he received at the pharmacy, nothing prevented Gil from refilling his prescriptions during his time as a Winn-Dixie customer. And for years, Gil used paper coupons at Winn-Dixie’s stores, despite any inconveniences such use entailed. Accordingly, we hold that Winn-Dixie’s website does not constitute an “intangible barrier” to Gil’s ability to access and enjoy fully and equally “the goods, services, facilities, privileges, advantages, or accommodations of” a place of public accommodation (here, a physical Winn-Dixie store). Consequently, Gil’s inability to access the website does not violate Title III of the ADA in this way.

In a dissenting opinion, Judge Jill Pryor noted that Title III protects disabled individuals not only from “exclusion, denial of services, and segregation” but also from being “treated differently.” Judge Pryor then concluded that Winn-Dixie’s website limitations caused the plaintiff to be “treated differently…namely, the more favorable treatment Winn-Dixie afforded to sighted customers, who could request express prescription refills or link manufacturers’ digital coupons to their rewards cards through the website before going to the store to shop.” Therefore, she would have held that Winn-Dixie violated the ADA when it did not make its website accessible.

Three employer takeaways

1. Your mileage may vary. The Eleventh Circuit’s decision widened the circuit split on whether a website is a place of public accommodation. The Third, Sixth, Ninth, and Eleventh have said no. The First and Seventh have said yes.
2. These cases are very fact-specific. Imagine a supermarket with a website, a tv game show with an automated hotline to try out. If that hotline lacks TDD, it may screen out deaf individuals and create real intangible barriers that deprive them of the opportunity to compete on the game show.  That’s an ADA Title III violation. Here, even a few tweaks to the supermarket’s website may have altered this case’s outcome, such as a shop-from-home feature where individuals can actually order groceries for delivery through the website.
3. Please don’t risk it. If your business has a website, consider engaging outside counsel or an expert to evaluate it and ensure Title III compliance. This is a cottage industry with serial plaintiffs and lawyers that troll for these types of lawsuits. Those of you that have had the (dis)pleasure of defending a Title III action know that they are not fun.

Disclaimer (and shout out)

My partner, Susan Warner, represents the defendant, Winn-Dixie. Congratulations, Susan, on a tremendous result in a true landmark decision!

The Employer Handbook Zoom Office Hour – April Schedule

The rest of this month is one banger after another!

This Friday, April 16, 2021, at Noon ET my special guest is employee-rights attorney and mediator Lori Ecker. Lori and I will talk about the next wave of employment lawsuits in 2021 and what businesses can do now to prepare for (and hopefully avoid) them. Interested? Yeah, you are. Click here to register.

On Friday, April 23, from 12-1 PM ET, by popular demand, it’s Beverages and Benefits, where my partners Mark Mathis, Bob Ellerbrock, and Amy Epstein Gluck will take a deep dive into the new U.S. Department of Labor guidance and model notices to support the new COBRA premium subsidy under the American Rescue Plan Act of 2021. You can register for that here.

AND JUST ADDED on April 30, from 12-1 PM ET, my rockstar partner, Susan Warner, will join us to discuss Title III, the Winn-Dixie victory, and proactive steps that your business can take to bulletproof itself against these types of ADA claims. Click here to register.