By: Lauren Garcia
Published On: May 17, 2024
What are Places of Public Accommodation?
Title III of the Americans with Disabilities Act (“ADA”) requires businesses serving the public to reasonably accommodate individuals with disabilities.[1] These businesses, referred to as places of public accommodation, must give individuals with disabilities equal opportunity access to the businesses’ goods or services.[2] The rise of technology, however, causes confusion as to whether mobile websites and apps qualify as places of public accommodation. If they do, businesses must ensure that their mobile components comply with ADA accessibility requirements.
There is a circuit split as to whether mobile websites and apps qualify as places of public accommodation. Recently, in Robles v. Domino’s Pizza, plaintiff Guillermo Robles sued Domino’s, alleging that its online ordering website was incompatible with screen-reading software.[3] Robles, who is visually impaired and used a screen reader to read aloud web pages, argued that Domino’s was required to design and maintain an accessible website under Title III of the ADA.[4] Domino’s counterargued that the ADA did not apply to its website because the ADA and its regulations lacked guidance on website accessibility.[5] The Ninth Circuit ruled that websites are places of public accommodation because: (1) Department of Justice (“DOJ”) regulations require that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities;” and (2) the DOJ defines auxiliary aids and services to include “accessible electronic and information technology” or “other effective methods of making visually delivered materials available to individuals who are blind or have low vision.”[6]
However, in Gil v. Winn-Dixie Stores, Inc., the Eleventh Circuit ruled that mobile websites and apps are not places of public accommodation.[7] Plaintiff Juan Carlos Gil, who is legally blind, sued the grocery chain for maintaining a website that was incompatible with a screen reader.[8] Winn-Dixie argued that the ADA’s public-accommodation provisions do not apply to its website because the site lacks a sufficient “nexus” to a physical location.[9] In addressing this argument, the Eleventh Circuit focused on the statutory language of Title III. The court noted that Title III lists types of locations that are public accommodations, all of which are tangible, physical places.[10] Thus, the court limited public accommodations to physical locations.[11]
Given that the DOJ created explicit guidelines on ADA web accessibility in 2022, the Supreme Court would likely find that mobile websites and apps do qualify as places of public accommodation.[12] Congress did not speak directly on the issue of mobile websites in the ADA’s statutory language. This opens the door for the Supreme Court to use the Skidmore doctrine to defer to the DOJ’s guidelines so long as the guidelines are (1) authorized by the statute; (2) based on the agency’s expertise; (3) consistent; and (4) persuasive.[13] There is not explicit language in Title III prohibiting the classification of mobile websites as places of public accommodation.[14] Additionally, the DOJ has specialized sections dedicated to disability rights that have been consistent in classifying websites as places of public accommodation since at least 2019.[15] Accordingly, it is fair to argue that the DOJ has specialized, persuasive expertise in disability law that has remained consistent.
The Fundamental Alterations Exception
While some argue that classifying websites and mobile apps as places of public accommodation requires too much of businesses, the ADA already has built-in statutory limits that would prevent this scenario. The fundamental alterations exception refers to a limitation of the ADA. This limitation does not require a business to change its policies and procedures to accommodate if it would cause a “fundamental alteration” in the nature of the business’ goods or services.[16] For example, a restaurant is not required to prepare special dishes for customers who have disabilities because this fundamentally alters the dishes the restaurant offers.[17] However, a reasonable alternative would be omitting a certain ingredient from a dish the restaurant already makes.
Although the strain Title III places on businesses, particularly small or locally owned ones, should be considered, it should not preclude the ADA from applying to web-based business components entirely. Doing so would (1) completely negate the ADA’s purpose of ensuring people with disabilities have the opportunity to fully participate in all aspects of life; and (2) ignore the fact that the ADA already has built-in safeguards to protect businesses from unreasonable accommodation requests.[19]
The Need for Web Accessibility
With the increase of services moving online after the Covid-19 pandemic, the need for web accessibility is more important now than ever. It is becoming increasingly common for individuals to work remotely using at-home computers and software, to order groceries online, to make appointments through online portals, or to interact with others through video call.[20] The implications of maintaining inaccessible web-based services are the same as maintaining more widely recognized physical barriers—individuals with disabilities are deprived the equal opportunity to use essential amenities afforded to others.[21]
Instead, businesses that serve the public should strive to break down inaccessible barriers. In the context of web accessibility, businesses can do this by creating web pages compatible with screenreaders, adding alternative captions to video and picture based media, and using text that is easily resized without assistive technology. Since the purpose of the ADA is to protect individuals with disabilities from discrimination in areas of public life, it follows that a business’s web based component that serves the public be classified as a place of public accommodation. In doing so, the business will be required to maintain web functions reasonably accessible to all their customers or face liability.
[1] See Businesses That Are Open to the Public, U.S. Dep’t of Just.: Civ. Rights Div. (last visited Feb. 11, 2024), https://www.ada.gov/topics/title-iii/.
[2] See id. (stating that businesses must make “reasonable modifications” in their policies, practices, and procedures to accommodate a person with a disability).
[3] See Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 902 (9th Cir. 2019).
[4] See id. (alleging that Domino’s failed to “design, construct, maintain, and operate” its website and app to be accessible).
[5] See id. at 903 (referring to the Department of Justice’s failure to provide web accessibility guidance under the ADA despite announcing its intention to do so in 2010).
[6] See id. at 904-05 (noting that the requirement to provide auxiliary aids and services applies to Domino’s website and app even though customers predominantly access them away from the physical restaurant).
[7] See Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1284 (11th Cir. 2021).
[8] See id. at 1270 (noting that Winn-Dixie only sells goods in its physical stores and does not offer any sales directly through its limited-use website).
[9] See id. at 1271 (stating that the Winn-Dixie website’s primary function is to re-fill existing prescriptions for in-store pickup, which is what the plaintiff was attempting to do with his screen reader).
[10] See id. at 1277.
[11] See id. (arguing that the statutory language in Title III defining “public accommodation” is unambiguous and clear).
[12] See Guidance on Web Accessibility and the ADA, U.S. Dep’t of Just.: Civ. Rights Div. (Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/.
[13] See Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944).
[14] See generally 42 U.S.C. § 12182.
[15] See Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 904-05 (9th Cir. 2019) (ruling that websites are places of public accommodation based on DOJ regulations).
[16] See Reaching Out to Customers With Disabilities, U.S. Dep’t of Just.: Civ. Rights Div. (last visited Feb. 11, 2024), https://archive.ada.gov/reachingout/lesson12.htm.
[17] See id.
[18] See id.
[19] See Businesses That Are Open to the Public, supra note 1 (referring to the statutory purpose of the ADA).
[20] See Guidance on Web Accessibility and the ADA, supra note 12 (describing how people rely on websites for daily life activities, such as “accessing voting information, finding up-to-date health and safety resources, and looking up mass transit schedules and fare information”).
[21] See What is the Americans with Disabilities Act (ADA)?, ADA Nat’l Network (last visited Feb. 11, 2024), https://adata.org/learn-about-ada.
[22] See id. (averring the ADA prohibits discrimination in “many areas of public life,” including public and private places that are open to the general public).