Youlan Xiu
89 Geo. Wash. L. Rev. 400
Suing website owners for violations of public accommodations law has become one of the fastest rising areas of civil litigation in recent years. In 2018, the Eleventh Circuit held that Dunkin’ Donuts’ website was in violation of Title III of the Americans with Disabilities Act (“ADA”). The plaintiff sued the online retailer, claiming that because portions of the website were not accessible to screen-reading software for the vision impaired, it violated Title III. The Eleventh Circuit reasoned that the online store had a “nexus” to physical locations, which made the website a place of public accommodation under the ADA. Unlike the Eleventh, Sixth, and Ninth Circuits, however, the First and Seventh Circuits have not required the “nexus” rule, but rather have found that any online retailer engaged in interstate commerce is subject to Title III liability.
The minority circuits have it right—online e-commerce boutiques are taking over industries all over the world, and whether or not a nexus exists in a physical store should not be dispositive. This circuit split is the result of two failures: (1) failure of the ADA to define “places of public accommodation” in a digital world, and (2) failure of the Department of Justice to promulgate any guidance that would outline the obligations of covered entities under Title III. Without guidance about how much accessibility is enough, companies can attempt to anticipate accessibility standards based on hazy case law and nongovernmental standards, or they can brace themselves to pay.
