Distinction in ADA Compliance Requirements for Public and Private Entity Websites

A recent decision by the Eleventh Circuit Court of Appeals has garnered attention and, in the process, created some confusion about the Americans with Disabilities Act (ADA) and obligations to make websites accessible for people with disabilities. Much of the confusion stems from distinct sets of rules stemming from Title II and Title III of the ADA.

Title III of the ADA applies to private entities

Much of the information published on the web about the ADA and website accessibility relates to Title III of the statute. Under Title III, private entities that maintain a “place of public accommodation” must comply with ADA accessibility rules with respect to that place. 

Federal appellate courts are split on whether websites qualify as places of public accommodation for Title III purposes. California is subject to the Ninth Circuit Court of Appeals’ ruling in Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019). In that case, the Court held that a private company’s website is a place of public accommodation as defined under Title III. The Supreme Court later denied certiorari for the case.

The Ninth Circuit’s position on Title III and websites is not universal. The Eleventh Circuit Court of Appeals in Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. Apr. 7, 2021) joined several other appellate courts in holding that a website is not a place of accommodation under Title III. The Eleventh Circuit, which has jurisdiction over Alabama, Florida, and Georgia, concluded that the statute’s enumerated list of “public accommodation” contemplates only tangible, physical places.  

Title II of the ADA applies to public entities

As our March 2 article on website accessibility describes, Title II of the ADA requires a public agency to design its website to be accessible by people with disabilities. Specifically, Title II requires public agencies to not discriminate against qualified individuals with a disability with respect to the accessibility or usability of the agency’s facilities, or participation by such individuals in the agency’s services, programs, or activities.

Public agencies that operate websites typically should look first to the rules under Title II of the ADA. Title III can become important to a public agency in rare circumstances, such as where a public agency has entered into a relationship with a private entity and worked together to create a website that is deemed to be privately owned for Title III purposes. 

For the moment, the decision in Gil does not affect the application of Title III requirements to California private entities. However, this area of law continues to evolve. A future case could come before the Ninth Circuit that affords it an opportunity to join the Eleventh Circuit’s interpretation. 

If you have questions about ADA compliance requirements for your agency’s website, please reach out to Jones & Mayer to speak with an attorney.