In a recent ruling, the Eleventh Circuit Court of Appeals has held that websites are not places of public accommodation within the meaning of Title III of the Americans with Disabilities Act (ADA). The decision conflicts with the Ninth Circuit which held that the ADA applies to the services of a public accommodation, not services in a place of public accommodation which meant that websites are covered. The ruling creates a circuit split and tees the issue up for potential future review in the Supreme Court.
Since 2014, there has been a big increase in website-accessibility litigation. Businesses have struggled to comply given the lack of clear guidance from the Department of Justice on the issue. Over the past three years plaintiffs have filed more than 10,000 lawsuits against businesses based on allegations that a website lacks accessibility features. Recently released 2020 statistics shows that hotbeds for these lawsuits are New York (1,756), California (989), Florida (542), and Pennsylvania (187).
The Eleventh Circuit rejected plaintiff’s argument that websites are places of public accommodation within the ADA. The court recognized that the statutory language in the ADA defining public accommodation is unambiguous and clear. It describes twelve types of locations that are public accommodations. All of these are tangible, physical places. No intangible places or spaces, like websites, are listed. The court Thus concluded that ADA public accommodations are limited to actual, physical places. Necessarily then, we hold that websites are not a place of public accommodation under Title III of the ADA.
The court also rejected the argument that the statute also forbids intangible barriers that prevent an individual from fully and equally enjoying the goods, services, privileges, or advantages of a place of public accommodation. The court found that a mere inability to communicate with and access the services available on a website does not mean there is an ADA violation. The court said that, to be an ADA violation, the inaccessibility of the website must serve as an intangible barrier to a plaintiff’s ability to communicate with the physical stores, which results in plaintiff being excluded, denied services, segregated, or otherwise treated differently from other individuals in physical stores.
In other words, if a point of sale or transaction can be completed at a physical location, there is not an insurmountable intangible barrier to access.