Landmark ADA case leaves more questions than answers about website obligations | Akerman LLP – HR Defense

Businesses seeking clarification on their obligations to ensure their websites are compliant with Title III of the Americans with Disabilities Act (ADA) will still have to wait, following a recent Court of Appeals ruling federal. This ruling by the Eleventh Circuit Court of Appeals (covering Florida, Georgia, and Alabama) overturns an earlier ruling by the same court that found a website was not a place of “public hosting.” . At the same time, the decision leaves open the question of the measures companies must take to ensure access for people with disabilities.

The ADA is a federal law that prohibits discrimination against people with disabilities. Title III of the ADA deals with “public accommodations,” which includes a wide range of listed entities and places such as restaurants, hotels, theaters, retail stores, libraries, and parks. Unless it fundamentally changes the nature of the services provided by the public institution, Title III generally requires a company to make reasonable modifications that would allow people with disabilities to participate in the full and equal enjoyment of goods or services. which are offered.

If a website is classified as a public place of accommodation, this means that companies will be required to remove barriers that prevent people with disabilities from accessing and using their websites. This is accomplished by ensuring that websites are designed in such a way that people with disabilities can access and use the website to the same extent as people without disabilities, including: (1) ensuring that all videos include closed captions for the hearing impaired; (2) ensure that the Website is compatible with screen-reading software so that persons with visual impairments can navigate and use the Website; or (3) ensure that the Website can be browsed and used only with a keyboard to accommodate people with dexterity issues who cannot use a mouse.

So, are websites a public hosting location? Currently the answer depends on where you are in the country. The recent decision of the Federal Court of Appeal, Gil v. Winn-Dixie Stores, Inc., was brought by a visually impaired plaintiff who alleged he was unable to take full advantage of discounts, pharmacy services and a store locator feature available on the Winn-Dixie website. Like many grocery stores, Winn-Dixie does not make sales directly from its website, but the website allows customers to access digital coupons and link those coupons directly to a customer’s account. The value of a coupon is then automatically applied when an item is purchased from the store. The Winn-Dixie website also allows pharmacy customers to renew existing prescriptions online so prescriptions can be picked up in-store. Gil is able to use a computer and access websites through the use of access technology and screen reading software. When Gil accessed Winn-Dixie’s website, he alleged that about 90% of the website wouldn’t work with accessibility and screen-reading software.

The Eleventh Circuit Court of Appeals initially agreed with the Third, Sixth, and Ninth Circuit Courts, holding that “public accommodation” under Title III means a physical place. In contrast, the First and Seventh Circuits came to the opposite conclusion and argued that the term “public accommodation” “is not limited to actual physical structures.” However, in December 2021, the Eleventh Circuit reversed its own earlier decision. Then, on March 2, 2022, the Eleventh Circuit denied a request for a rehearing of the case, effectively closing the door on the case and postponing the matter until it is dealt with further or the Supreme Court intervenes. .

Even if the Eleventh Circuit reversed its decision that a website was not a public place of accommodation, companies are not necessarily off the hook when it comes to accessibility. Indeed, even if a website is not public hosting per se, it may still fall under ADA jurisdiction if the website is “heavily embedded” in physical locations that are normally subject to Title III. If such a website does not work for people with disabilities, it could constitute a “soft barrier” to the enjoyment of this public accommodation. For example, a business that sets up a website for customers to design a cake that they can then order and pick up at their store may have a website that is heavily integrated with the physical location. In such circumstances, the website may have to comply with the ADA, even if the website itself is not a public hosting location.

Savvy businesses may want to bypass fact-based analysis altogether in favor of a simpler, safer approach, and carefully review their websites now to make sure they’re ADA-compliant. This approach has several advantages. First, websites don’t stop at the state border. Even employers in a jurisdiction that has ruled that websites are do not Title III public accommodations may have customers elsewhere who use their website. Second, even though the relevant statutes or case law do not specifically state that websites are places of public accommodation under Title III, the Department of Justice has taken the position that Title III applies to all public-facing websites operated by businesses that are otherwise considered places of public accommodation. Third, creating an ADA-compliant website, even if you are in a jurisdiction where Title III does not apply to websites, can help deter frivolous drive-by lawsuits brought by plaintiffs in series.

Take away food

Now more than ever, the ability to connect with customers and do business online is paramount to business success. Creating and maintaining a high quality website is a big investment. The internet has become an essential tool for many, but a website also carries potential legal risk if it is not ADA compliant.