Last week, in Winegard v. Newsday LLC, the U.S. District Court for the Eastern District of New York issued a decision that may finally tee up the issue of website accessibility to be directly addressed by the Second Circuit and provided businesses without a brick and mortar presence with unexpected relief by dismissing a serial plaintiff’s putative class action lawsuit alleging that a newspaper’s failure to provide closed captions of online videos for individuals who are deaf or hard of hearing violated Title III of the Americans with Disabilities Act (“Title III” or “ADA”).
In dismissing the case, the Court adopted a more stringent, strict constructionist, approach to analyzing the applicability of Title III to websites, holding that Title III does not apply to the website in question because it is not, in and of itself, a “place of public accommodation” (“PPA”). Diving into the ADA’s text and history, the Court noted that the ADA already defines “public accommodations” as private entities such as hotels, restaurants, stadiums, grocery stores and gymnasium, and further, 49 of the 50 examples “indisputably relate to physical places,” indicating that PPA are limited to “actual, physical places.” The Court further stated that, had Congress intended for the term to encompass more than a physical PPA, it could have, but in the 31 years since it passed the ADA, never did. Echoing the Eleventh Circuit’s recent decision in Gil v. Winn-Dixie, the Court held that whether a website itself qualifies as a PPA “is an issue for Congress to resolve.” On this basis, the Court applied what other jurisdictions have deemed the “nexus theory,” holding that for a website to have accessibility obligations under Title III, it must “offer the same ‘goods and services’ as the business’s brick and mortar operation” and plaintiff must plead a connection between the website and the brick and mortar location.
In reaching its decision, the Court was cognizant that other district court judges in the Second Circuit who had previously considered the issue of website accessibility had adopted a more expansive view of the law, focusing on the intent of the ADA as a sweeping civil rights law. The Court, however, distinguished the present set of facts from those in Pallozzi v. Allstate Life Insurance Co, 198 F. 3d 28 (2d Cir. 1999), in which the Second Circuit extended Title III’s reach beyond a physical PPA to an insurance policy. The Court rejected the notion that this decision “compel[led] an outcome at odds with the plain-reading above,” because plaintiff had never alleged that Newsday operated a “public-facing, physical place in which newspapers – or any other goods or services are sold.” In Pallozzi, on the other hand, the insurance policy in question was connected to a physical insurance office. As such, the Court held that the Newsday website was not a PPA under Title III of the ADA.
By adopting this narrower approach, the Court has arguably created an express split that could finally create the impetus for the Second Circuit to directly address Title III’s applicability to websites. For the time being, this decision should provide businesses whose websites are not clearly connected to a PPA with some additional ammunition to fight back against the endless wave of website accessibility suits that continue to plague district courts in this Circuit. As the Court acknowledged, however, it is contrary to other decisions inside and outside of the Second Circuit and does not apply where there is a nexus between a PPA and its website.
For now, businesses must continue to await an act of Congress or regulations from the Department of Justice for the definitive guidance that they have been asking for over the last several years. In the meantime, the easiest way to avoid falling prey to a website accessibility lawsuit, including one regarding a failure to provide closed captioning, is to achieve substantial conformance with WCAG 2.1 Levels A and AA (as confirmed via human-based auditing from both the code and user perspectives).