Over the past several years, plaintiffs lawyers have started a cottage industry that threatens and/or sues businesses on a class action basis using a named disabled person who alleges that he or she was unable to access the company’s website in violation of Title III of the Americans with Disabilities Act. This can involve a visually impaired person who needs the contents read to them, or a person with a hearing disability who demands that video or other audio content include close captioning. In some cases, the plaintiffs even offer affiliated technical correction services, usually with a hefty fee attached.

Last week, businesses subjected to these claims received some good news when the Eleventh Circuit Court of Appeals (which includes Georgia) held in a 2-1 decision that a retail grocer’s website was not a “public accommodation” under the ADA. This means that the business had no obligation under the ADA to make it accessible to disabled users. In Gil v. Winn-Dixie Stores, Inc., the plaintiff was a visually impaired customer who alleged that the grocer’s website was not compatible with screen reading software he used to access the internet. The district court agreed, issuing an injunction that would require Winn-Dixie to make its website accessible.

In a 2-1 decision, the Eleventh Circuit reversed this decision on the basis that the website was not an ADA public accommodation. The majority noted that the statutory language in Title III is unambiguous, and that public accommodations are limited to physical places. In this case, the website could not be used to actually make purchases, and the customer had to visit the store to buy groceries. Therefore, his inability to access the website did not materially interfere with his ability to shop. The dissenting judge said that the website contained discount information and coupons, and therefore, disabled persons could not enjoy the same benefits provided to non-disabled ones.

This decision may be reviewed by the full Eleventh Circuit, or even the U.S. Supreme Court. In addition, many retailers upgraded their websites to allow purchases and delivery since this complaint was filed, especially in response to the COVID-19 pandemic. This case’s logic may not apply to websites that allow customers to directly conduct business. Nevertheless, if followed by other federal courts, this decision provides a defense to website inaccessibility claims, especially for sites that are only informational or promotional in nature.