Public Accommodations Under ADA Limited to Actual, Physical Places, with Website Accessibility Claims Permitted Only for Intangible Barriers to Access

The fact that a website was incompatible with screen-reader software for visually impaired users was held insufficient (without more) to state a claim for public-accommodation discrimination under Title III of the Americans with Disabilities Act, in Gil v. Winn-Dixie Stores. Inc., 2021 WL 1289906 (11th Cir. Apr. 7, 2021). The Eleventh Circuit held in a majority opinion by Judge Lisa Branch that the statutory definition of “public accommodation” in Title III, which prohibits discrimination “on the basis of disability” in any “place of public accommodation,” 42 U.S.C. § 12182(a), applies only to “tangible, physical places”—not to “intangible places or spaces, such as websites.”

Although the court acknowledged that a website could, in theory, present actionable “intangible barriers” to accessing a physical place of public accommodation, the grocery store’s website at issue in Gil did not meet that standard, partly because all sales and other interactions needed to be “completed in-store.” Thus a “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 [e.g., a grocer’s] physical stores (the operative place of public accommodation).” As long as the plaintiff was fully and equally “able to communicate effectively with, or access the services offered in, the physical stores,” the majority saw “no basis for concluding” that the grocery store had violated Title III.

Judge Jill Pryor dissented on the ground that because “visually-impaired customers could not access the website,” they were “therefore were treated differently than . . . sighted customers” and “denied the full and equal enjoyment of services, privileges, and advantages” offered by the grocery store online, particularly with respect to prescription orders and coupons.

A more detailed discussion of the Gil decision and its potential implications in other cases is contained in the Eversheds Sutherland legal alert posted here.

Posted by Lee Peifer.

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