Must Websites Comply With the ADA?
A look at caselaw
By Pierre Grosdidier
Website Americans with Disabilities Act, or ADA, compliance litigation is all the rage, manifesting itself as an epidemic of “website surf-by lawsuits.”1 The issue is whether websites must be accessible to the visually impaired via screen reader software. Circuit courts are split. Title III of the ADA requires that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”2 The statute defines “public accommodation” through a laundry list of 12 characterizations that are all physical places that must affect commerce, e.g., hotels, restaurants, retail stores, theaters, and stadiums.3 The substantive legal question whittles down to whether a website is a “place of public accommodation” under 42 U.S.C. § 12181(7), an expression that the statute leaves undefined.
One line of cases has construed § 12181(7)’s laundry list narrowly and held that a website need not comply with the ADA unless a sufficient nexus can be established with a corresponding physical space.4 For example, in Earll v. eBay, Inc., the 9th Circuit Court of Appeals held that eBay was not subject to the ADA because its services were “not connected to any ‘actual physical place[ ].’”5 Under this logic, streaming and social media sites are exempt from ADA compliance.6 But, websites that are tied to a physical store may have to comply. In Nat’l Fed’n of the Blind v. Target Corp., the court agreed with the plaintiffs that Target’s website was inaccessible to the blind, who were denied “full and equal” access to the company’s stores.7 The court refused to dismiss the complaint to the extent that the website impeded the plaintiffs’ access to the physical stores. It reasoned that § 12182(a) “applie[d] to the services of a place of public accommodation, not services in a place of public accommodation.”8 These California cases trace their roots to two 3rd and 6th Circuit cases that have also construed website ADA compliance narrowly—i.e., requiring a physical store nexus.9
Another line of cases has held that websites must comply with ADA Title III regardless of whether the website is tied into a physical store. In Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, the 1st Circuit Court of Appeals rejected the defendants’ attempt to narrow ADA Title III’s scope to physical locations.10 It held that Congress necessarily contemplated that Title III applied to more than services in physical places when it included “travel services” in § 12181(7)’s laundry list. Travel services are often transacted over the phone without the clients’ in-store presence. Per the court, it would defy logic to conclude that the ADA protected in-store clients but not those who transacted over the phone. “Congress could not have intended such an absurd result.”11
The 2nd and 7th Circuit Courts have followed Carparts.12 In a detailed opinion, the district court in Andrews v. Blick Art Materials, LLC denied a motion to dismiss an ADA Title III claim against a company whose website the blind plaintiff could not use.13 The court noted that Title III’s title (see footnote 2) and the laundry list’s heading both excluded the word “places,” which indicated Congress’ intent not to limit the statute’s reach by this term. A broad interpretation of Title III’s scope was consistent with “the ADA’s broad remedial purpose” of fighting discrimination against disabled persons. The court specifically rejected as plainly unworkable the Target court’s holding that a website’s ADA compliance could be compartmentalized between information about a website and information related to the goods and services available through the website.
The 5th Circuit has not addressed the issue of ADA website
compliance. But, it held in Magee v. Coca-Cola Refreshments USA, Inc.,
that Title III did not apply to the owner of glass-front beverage
vending machines.14 The court reasoned that, plainly, a
vending machine did not qualify as a “sales establishment” under §
12181(7)(E). The court acknowledged the circuit split and joined the
3rd, 6th, and 9th Circuit Courts of Appeals.15 At the very
least, Magee suggests that the 5th Circuit will look closely at the
nexus between a website and a physical store in deciding whether to
require ADA Title III compliance. TBJ
PIERRE GROSDIDIER is counsel to Haynes and Boone’s business litigation practice group in Houston. He divides his practice between construction litigation and construction contract drafting. Grosdidier belongs to the first group of attorneys certified in construction law by the Texas Board of Legal Specialization in 2017. His practice also includes data privacy, unauthorized computer access, and media and entertainment issues and litigation. Prior to practicing law, Grosdidier worked in the process control industry. He holds a Ph.D. from Caltech and a J.D. from the University of Texas. Grosdidier is a member of the State Bar of Texas, an AAA panelist, a registered P.E. in Texas (inactive), and the State Bar of Texas Computer & Technology Section webmaster and Circuits co-editor for 2018-2019.