Compliance Blog

The Americans with Disabilities Act (ADA) is a federal civil rights statute originally signed into law in 1990.  Its purpose is, in part, “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and "to provide clear, strong, consistent enforceable standards" addressing such discrimination.  Title III of the law and its implementing regulations require businesses that are “public accommodations,” which include credit unions, to be accessible to those with disabilities. One issue that has come up in recent years is the extent to which the website of a public accommodation needs to be accessible to those with visual impairments, and what it would mean for a website to be accessible. The extent to which the ADA applies to a business’s website has not been addressed by federal regulations, and courts have reached mix results on this issue.  

In late 2017 and throughout 2018, credit unions faced a high degree of litigation risk from plaintiffs’ attorneys claiming the credit unions’ websites did not comply with the ADA. Some credit unions chose to fight lawsuits, so NAFCU filed sixteen amicus briefs in seven states.  Throughout 2019, credit unions saw victories in both federal trial and appellate courts, particularly in cases where the plaintiff could not qualify for credit union membership. Overall though, decisions have varied from court to court on the question of whether the ADA applies to websites and what it means for a website to be accessible or otherwise ADA-compliant. 

Last week, a the 11^th Circuit Court of Appeals, which has jurisdiction in Alabama, Florida and Georgia issued an opinion involving the grocery store, Winn-Dixie. In this case, a visually impaired person sued Winn-Dixie, claiming its website was not accessible using screen reader technology which prevented him from accessing coupons, among other things. Without determining whether or not the ADA applies to websites, the lower court found that the grocer’s website was “heavily integrated” with its physical store, so the lack of accessibility to the website limited the plaintiff’s access to the store. This was one of the first federal courts to reach a determination that the ADA extended to websites.

Winn-Dixie appealed, and over two years after the appellate court heard oral arguments in the case, it issued an opinion holding, in part, that a website is not a public accommodation under the ADA:

The statutory language in Title III of the ADA defining “public accommodation” is unambiguous and clear. It describes twelve types of locations that are public accommodations. All of these listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed. Thus, we conclude that…public accommodations are limited to actual, physical places. Necessarily then, we hold that websites are not a place of public accommodation under Title III of the ADA. (Emphasis added.)

Keep in mind that this ruling is limited to the places where this court has jurisdiction – again, Alabama, Florida and Georgia. Courts in other jurisdictions have not reached similar conclusions and are not bound by this decision.

However, the court did indicate that a website can still violate Title III of the ADA because, in some situations, a website being inaccessible could present an “intangible barrier” to a person’s access to the physical location itself. For example, a website could be a “sole access point” for accessing the privileges of a business, or otherwise cause someone to be “excluded, denied services, segregated, or otherwise treated differently” from others. However, the court determined that Winn-Dixie’s website did not present such a barrier based on a few factors:

• the website had limited functionality including not making any sales of products;
• transactions that can be initiated with Winn-Dixie on its website must be completed at the store; and
• the plaintiff was not prevented from shopping at the store and had actually shopped there for years.

In other words, with different facts in play, a website can still be an intangible barrier to accessing a business and present a violation of Title III of the ADA.

The court noted at the end of its decision that “separation of powers principles” and the complexity of the issue at hand is a “project best left to Congress.” So without Congressional action that expands the definition of “public accommodations” to include websites, the court was not willing to extend ADA liability to the facts of this particular case. Of note, some members of Congress have introduced legislation on this topic a couple of times, including in February 2021. The Online Accessibility Act of 2021 would clarify the applicability of the ADA to public accommodations’ websites and adopt a standard for what is meant by website accessibility, as opposed to leaving these determinations to courts.

This also might not be the end of the story. The plaintiff in this case could appeal by asking the full panel of judges on this appellate court to review the case. The plaintiff could also petition the Supreme Court to hear the case. NAFCU will monitor for additional activity on this case.

Meanwhile, many credit unions have already taken steps to ensure their websites are accessible to members as credit unions are generally committed to assisting all members. Additionally, finding ways to assist those with disabilities can not only limit ADA risk, but, perhaps more importantly, is reflective of credit unions’ commitment to serving all members and providing strong member service. NAFCU and its members strongly support the protections set forth under the ADA but believe these efforts are best achieved through clear guidance and standards for website compliance, not through meritless and costly lawsuits. The association will continue to seek clarity for credit unions.