Digital Spaces as Places of Public Accommodation

Key Points

  • The Americans with Disabilities Act (ADA) currently does not address whether websites are places of public accommodation that must be accessible to individuals with disabilities, and courts are split on this issue.
  • As recently as April 7, 2021, the Eleventh Circuit held that websites are not places of public accommodation.
  • The Online Accessibility Act (H.R. 1100), re-introduced in Congress in February 2021, would add Title VI to the ADA to define websites and mobile applications as places of public accommodation, finally providing businesses with some certainty in this area.
  • The proposed legislation includes provisions regarding administrative remedies, the reporting of violations, and enforcement by the Department of Justice (DOJ) or through private rights of action.

In February 2021, Reps. Budd (R-NC), Hudson (R-NC), and Correa (D-CA) re-introduced H.R. 1100, known as the Online Accessibility Act. The act, initially introduced in 2020, would amend the ADA to include an additional provision, Title VI: Consumer Facing Websites and Mobile Applications Owned or Operated by a Private Entity. Title VI would require any consumer-facing website or mobile application to be “in substantial compliance” with the Web Content Accessibility Guidelines (WCAG) 2.0 Level A and Level AA standard, or provide an alternative means of access for individuals with disabilities that is equivalent to the content available on the website. The WCAG is a standard published by the nonprofit World Wide Web Consortium, otherwise known as the W3C. Many organizations consider WCAG 2.1 Level AA as the current gold standard of accessibility in digital spaces.


The ADA prohibits discrimination against individuals with disabilities in a number of areas. Under Title III, this prohibition generally means that “places of public accommodation” must be accessible to members of the public with disabilities. Places of public accommodation include, but are not limited to, restaurants, hotels, theaters, grocery stores, banks, pharmacies, retail stores, airports, museums, libraries, and parks. When the ADA became law in 1990, the internet was in its infancy, so it is unsurprising that Congress failed to anticipate the need to address the accessibility of websites or other digital spaces in this law.

But in the year 2021, the internet is a ubiquitous tool, with virtually all aspects of business and personal affairs capable of being conducted online. This reality begs the question: Can a digital space also be a “place” of public accommodation which must be made accessible? Many courts have grappled with this question, with inconsistent results across circuits. For example, in the Ninth Circuit, a website without a nexus to a physical location would not be considered a place of public accommodation; that same website would be a place of public accommodation in Seventh Circuit. Compare Earll v. eBay, Inc., 599 F. App’x 695, 696 (9th Cir. 2015) with Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed’n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456 (7th Cir. 2001). Most recently, on April 7, 2021, the Eleventh Circuit held that websites are not places of public accommodation. Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1277 (11th Cir. 2021). The plaintiff’s petition to the Eleventh Circuit for a rehearing en banc is pending.

In the past, lawsuits under Title III typically centered on physical barriers or obstructions. More and more frequently over the last several years, plaintiffs are alleging that an inaccessible website, such as one which is incompatible with the screen reader technology often used by the visually impaired, is a barrier that discriminates against individuals with disabilities—and many of these claims have been successful. For example, recently, in the Central District of California in the Ninth Circuit, the court granted summary judgment for a plaintiff and determined an ADA violation occurred when the plaintiff could not successfully order a pizza from Domino’s website or app using screen reader technology. Robles v. Domino’s Pizza, LLC, No. CV 16-6599 JGB (Ex) (C.D. Cal. June 23, 2021).  In a further refinement of the Ninth Circuit’s position on whether a website can be a place of public accommodation, the court also rejected Domino’s argument that the franchise ownership model breaks the “nexus” between the franchisee’s brick-and-mortar locations and the franchisor’s inaccessible website and app.

Under the current legal framework with few exceptions, a plaintiff may file suit alleging a violation of the ADA without warning and without exhausting any administrative remedies. Due to open questions of law and a lack of regulatory guidance from the Department of Justice, these suits may be difficult and costly to defend. In addition to alleging an ADA violation, many plaintiffs also allege violations of complementary state- or locality-specific accessibility laws. Some state laws, such as in California and New York, are even more favorable to plaintiffs. The ADA and many of these state laws entitle the plaintiff to injunctive relief (i.e., for the organization to bring the website into substantial compliance with an accessibility standard), as well as authorizing attorney’s fees and possibly additional fines or damages.

What this means is that a business may be unaware that its website is out of “compliance” until a lawsuit hits its doorstep, at which point, it may have no choice but to quickly remedy its website to the plaintiff’s satisfaction, and to compensate a plaintiff for its attorney’s fees. In addition, the question of whether or not a website is a place of public accommodation subject to the ADA in the first place may likely depend on the jurisdiction in which the plaintiff chooses to file the lawsuit.

What Title VI would change

The Act would require an individual to take the following actions before filing a civil suit under federal law:

  • First, to notify the owner or operator of a website or mobile application that it is not in compliance with WCAG 2.0 Level A and Level AA;
  • If, within 90 days of receiving this notice, the owner or operator fails to bring the website or mobile application into compliance, the individual may file a complaint with the DOJ;
  • The DOJ will complete an investigation within 180 days to determine whether a violation exists; and may then initiate a civil action.

If after this process is followed the DOJ has not initiated a civil action, an individual will have exhausted all administrative remedies, and will be permitted to bring a civil suit. This act failed to pass in 2020 and it appears to be doomed again in 2021.

What this means to you

As is the case in many areas of the law, the best defense is a good offense. If asked, most companies would wholeheartedly agree that accessibility for all customers and potential customers is good for business. Rather than waiting for what now appears to be the inevitable lawsuit, it is always beneficial for an organization to verify that its website is substantially in compliance with an accessibility standard such as the WCAG 2.1 AA and, if not, to take steps to start bringing it into compliance. Businesses would be well served if the federal government would finally provide certainty about the applicable standards and resolve the split among the courts, whether it is by passing the Online Accessibility Act or similar legislation, by decision of the U.S. Supreme Court, or otherwise.

About the Authors

Barbara Grandjean (left) is a Denver-based partner with Husch Blackwell LLP focusing on labor and employment law. Jackie Coffman (right) is an attorney in Husch Blackwell LLP’s St. Louis office where she focuses on labor and employment law.

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