Websites May Present Impermissible ‘Intangible Barriers’ Under ADA

Farleigh Wada Witt dives into the 11th Circuit Court of Appeals’ recent ruling that websites are not a public accommodation subject to the Americans with Disabilities Act.

4/27/2021

Editor’s note: The following information is contributed from credit union law firm, Farleigh Wada Witt, on the U.S. Circuit Court of Appeals’ recent ruling in Gil v. Winn-Dixie.

Although the wave of threatened class action lawsuits against credit unions over website compliance with the Americans with Disabilities Act has largely subsided in the Northwest, the scope of the ADA’s coverage of websites is still a hotly contested issue. In Gil v. Winn-Dixie Stores, Inc., the U.S. Circuit Court of Appeals for the 11th Circuit recently held that a website is not by itself a public accommodation that is directly subject to the ADA. This was a somewhat surprising result in a case that has been closely monitored by legal observers. While the ruling offers some potential relief for businesses such as Winn-Dixie (a grocery store), it will likely have minimal impact on credit unions in the Northwest, due to differences between Winn-Dixie’s website and those of many credit unions, and due to conflicting decisions in other jurisdictions.

The Court’s Ruling

The court first examined whether a website is a “place of public accommodation” that is subject to the ADA. It determined based on the language of the statute that only physical locations fit within the definition of “place of public accommodation.” Therefore, the court reasoned, a website by itself is not subject to the ADA. However, the court’s analysis did not stop there. The court indicated that while a website is not directly subject to the ADA, a website could still serve as an “intangible barrier” that could inhibit persons with disabilities from equal access to goods and services available in physical locations that are subject to the ADA.

This is where the features of Winn-Dixie’s website came into play. The Winn-Dixie website is non-transactional. All Winn-Dixie sales are conducted in the physical stores. Other than marketing, the website’s only functionality was to provide some shortcuts in obtaining prescription refills and coupon redemptions. Thus, even though the Winn-Dixie website was admittedly inaccessible to persons with visual disabilities, the court determined that the inaccessibility did not create any barrier to those persons from fully enjoying the benefits of the physical locations. Therefore, according to the court, the inaccessibility of the Winn-Dixie website did not constitute a violation of the ADA.

Impact on Northwest Credit Unions

Although this decision is interesting, and increases the likelihood that the issue may ultimately be decided by the Supreme Court, it has very little impact on credit unions in the Northwest. There are several reasons for this. First, the Winn-Dixie decision noted that a website may create a violation of the ADA even if it is not directly subject to the ADA, if the website serves as an intangible barrier to persons with disabilities from enjoying the products and services offered in the physical locations on an equal footing as those without disabilities. Thus, for example, if the credit union’s website includes a secure email feature or online check ordering feature that is not accessible, it could be deemed an ADA violation even under the 11th Circuit standards. Also, the court stressed the fact that no transactions of any sort could be conducted online with Winn-Dixie; for most credit unions, a substantial amount of business can be and is conducted online.

Finally, the 11th Circuit encompasses only Alabama, Florida, and Georgia. Its decisions are not binding on the 9th Circuit Court of Appeals, which covers Washington, Oregon, and Idaho (along with a number of other Western states). A 2019 9th Circuit case, Robles v. Domino’s Pizza, LLC, held that when there is a nexus between a company’s website and the goods and services offered in a physical location, the website can be subject to the ADA even if it is not a place of public accommodation. This would certainly apply to online banking and mobile apps. In addition, many credit unions have at least some connection on or through their main website to services offered in the branches such as online loan or deposit account applications, check ordering, and other similar services. In other words, it is likely that courts in the 9th Circuit applying the Dominos standard would apply the ADA to most credit union websites.

The Winn-Dixie case will garner some attention for its position that websites are not places of public accommodation. However, a full analysis of the case and the legal landscape indicates that credit unions should continue with efforts to maintain online ADA compliance.

For questions, please contact the legal experts at Farleigh Wada Witt.