Paul Peter Nicolai
Circuit Split Widens Over ADA’s Application to Websites
Updated: Mar 28, 2022
Another federal appellate court has held that a website inaccessible to the blind does not violate the Americans with Disabilities Act (ADA). The decision highlights a split on what a place of public accommodation subject to ADA is. Absent a Supreme Court decision, congressional action is necessary to resolve the issue.
A legally blind plaintiff sued because he could not access a store’s website to refill prescriptions online or use digital manufacturer coupons with his screen reader software, which vocalizes the content of webpages. The law prohibits discrimination based on disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. The plaintiff said the website was a place of public accommodation or had a sufficient connection to the onsite pharmacies at the defendant’s physical stores, making the website subject to ADA.
The district court ruled for the plaintiff. It held that the plaintiff alleged a sufficient connection between the defendant’s website and its physical stores. Concluding that the defendant had violated ADA, the district court entered a permanent injunction that required the defendant to make its website accessible to individuals with disabilities.
The U.S. Court of Appeals vacated the ruling. To determine if the defendant violated ADA, it undertook a two-step analysis. First, the appellate court looked at the plain language of the ADA and its implementing regulations. It noted that ADA provides an expansive list of physical locations that are public accommodations. That list did not include websites but did include grocery stores, as did the regulations. The appeals court decided that websites are not places of public accommodation as defined by the statute.
Second, the court analyzed whether the website’s inaccessibility created a prohibited intangible barrier to accessing the defendant’s physical stores. It explained that failure to provide reasonable auxiliary aids and services necessary to allow a disabled person equal access to the services of a physical store could sometimes be intangible barriers violating the ADA.
The lack of website accessibility, though inconvenient, was not an intangible barrier. Nothing prevented the plaintiff from shopping at the physical store. The appellate court further observed that transactions initiated on the website must be completed in-store. It concluded there was no violation since using the website was not necessary to provide those services to the blind.
The appellate court clarified there was no statutory or precedential basis for a ‘nexus’ standard, where a plaintiff only has to demonstrate that there is a ‘nexus’ between the service and the physical public accommodation.
This is the 4th federal circuit appellate court to rule that places of public accommodation must be physical locations. Three circuits (including New England) say that places of public accommodation are not limited to physical structures and can include websites because limiting the ADA’s protections to physical locations contradicts legislative intent.