Welcome to the second in my series of monthly updates on web accessibility legal developments—my attempt to keep up with my Lexis feed while also letting you know what’s going on in the world of web accessibility litigation.
Ugh…. More Hotel Cases
I hate hotel web accessibility cases. I’m not really sure why. Maybe it’s because the geek inside of me really is more interested in the technology issues in web accessibility cases and not accessible room descriptions in hotel cases? Or maybe it’s because purely web cases bring up issues about interpreting the ADA’s coverage of purely online activities? Whatever it is, I get so much more excited about pure web accessibility cases and NOT hotel web accessibility cases. So how’d we do this month?
- Hotel web accessibility cases: 16
- Pure web accessibility cases: 2
For what it’s worth, the hotel cases did not go well for plaintiffs—almost every case held in favor of the hotels. The courts found either that the room descriptions met the DOJ’s Reservation Rule or that the plaintiff’s couldn’t prove a clear intention to stay at the hotel and thus had no standing to sue.
That Crazy 11th Circuit
More Thoughts on Winn-Dixie
Wow, if the country were tilted, it’s clear where all the nuts would roll—Florida and the 11th Circuit in the southeast corner of the country! I’ve been thinking about the Eleventh Circuit decision in Gil v. Winn-Dixie for some time and I’ve decided that the court’s approach in that case is best characterized as creating a whole new test for website accessibility. At first, I wanted to call it “Nexus Plus” but that doesn’t quite capture it. Instead, I think that the Eleventh Circuit’s articulation is the “Gateway” standard. Based on the logic of the court’s decision, unless the website acts as a gateway to the goods and services available at a physical place of public accommodation, courts in the Eleventh Circuit won’t not entertain claims that an inaccessible website violates Title III of the ADA. Consider what happened in Winn-Dixie. First, Mr. Gil couldn’t use the online pharmacy and had to wait twice as long waiting for his prescriptions. Nope, the court says, he has no standing to sue. What about the fact that Mr. Gil couldn’t access online coupons and had to rely on good Samaritans at the store to assist him with physical coupons? Nope, still no standing. In other words, unless the website either (1) served as a gateway to accessing a physical place of public accommodation or (2) provided some good or service completely unavailable when Mr. Gil visited a Winn-Dixie store, he had no standing to sue. For instance, if the only way that Mr. Gil could buy groceries from Winn-Dixie was by first reserving an appointment online but couldn’t do so, that might enable Mr. Gil to meet the court’s high bar for standing. Or maybe even if the coupons that Mr. Gil used in the store were ONLY available online, then maybe even that would be enough for the 11th Circuit’s “gateway” standard. And, when you consider the facts in Rendon v. Valleycrest Productions (where the court held that an inaccessible telephone screening process violated the ADA because it prevented deaf contestant from participating on the game show, “Who Wants to be a Mllionaire?”), Winn-Dixie was really the narrowest possible interpretation of Rendon that the court could have given to that case.
Sierra v. City of Hallandale Beach
So just when you may have thought that the Eleventh Circuit was a jurisdiction for judges with the disposition of Attila the Hun, they surprise you. I often cite the Sierra v. City of Hallandale Beach line of cases for a number of different legal precedence (such as whether the FCC has primary jurisdiction over CVAA claims or whether a local government can be liable for the inaccessibility of its social media content), but just this last week they issued yet another opinion in the case concerning a completely different issue. Specifically, the court addressed whether Eddie Sierra had standing to sue when he filed a complaint against the city for not providing captioned videos of important city events on its website. The court concluded that Mr. Sierra had standing to sue and reversed the lower court’s decision because the district court improperly interpreted another case, Price v. City of Ocala, 375 F. Supp. 3d 1264 (M.D. Fla. 2019) based on the nature of the remedy sought. Now I can’t really say whether that distinction or the Price decision make sense, but it doesn’t surprise me at all that a Federal appellate court would say that a city violated Title II of the ADA when it fails to provide captioning on the videos it posts on its website.
It surprised me was that such a rational decision came on the heels of that court’s bizarre decision in Gil v. Winn-Dixie, where the 11th Circuit decided to become such a outlier in its hostility to people with disabilities. But another surprising part of the Sierra decision was the strange and rambling concurring opinion by Judge Kevin Newsom. While Federal court judges usually try to stay within the issues immediately before the court, Judge Newsom’s concurring opinion wandered off into an ethereal discussion of the relationship between the Executive and Judicial branches of the Federal government-- even though there was no question about whether Congress could create a private right of action for Mr. Sierra and other people with disabilities. As I read Judge Newsom’s opinion, I kept thinking that his analysis might better be served in a law review article instead of a concurring opinion.
But it’s not like I wasn’t forewarned. At the beginning of his opinion, Judge Newsom writes.
I agree that Eddie Sierra has suffered an "injury in fact" as that phrase has come to be understood in Article III standing doctrine. Accordingly, I join the Court's opinion. I write separately to explain why, following several pretty unsatisfying encounters with it, I've come to doubt that current standing doctrine—and especially its injury-in-fact requirement—is properly grounded in the Constitution's text and history, coherent in theory, or workable in practice. I'd like to propose a different way of thinking about things, in two parts. First, in my view, a "Case" exists within the meaning of Article III, and a plaintiff thus has what we have come to call "standing," whenever he has a legally cognizable cause of action, regardless of whether he can show a separate, stand-alone factual injury. Second, however—and it's a considerable "however"—Article II's vesting of the "executive Power" in the President and his subordinates prevents Congress from empowering private plaintiffs to sue for wrongs done to society in general or to seek remedies that accrue to the public at large. It has taken me a while to come to this conclusion, and unpacking it will likewise take some doing.
Sierra v. City of Hallandale Beach, 2021 U.S. App. LEXIS 13473 *9 (11th Cir. 2021). When a judge starts an opinion like that, you know it’s time to get the popcorn going because you’re in for an interesting show. The approximately 15,000 words in Judge Newsom’s opinion can be boiled down into his assertion that the standing to sue doctrine doesn’t work because the tests are unusable and unpredictable. Instead, a plaintiff can sue as long as he has a legal right created either by common law or by statute. Congress, however, can’t create a private right to sue if the goal is to protect a public interest. In general, I don’t disagree with that 53-word summary. Between Winn-Dixie (Judge Branch) and this concurring opinion in Hallandale Beach (Judge Newsom), we have two really odd opinions by two judges from the same court and who were both appointed in 2017. We may as well settle in for some more weird opinions coming out of the Eleventh Circuit because it’s clear they will both be on the bench for some time.
New York and Second Circuit Don’t Require Web Sites to be Tied to Physical Places
Ah, time for something more rational...
For some time now, courts in the Second Circuit—and particularly the U.S. District Court for the Southern District of New York—have continued to emphasize that a purely online business can be sued for its inaccessible website under Title III of the ADA. In Jaquez v. Dermpoint, Inc., 2021 U.S. Dist. LEXIS 96067 (S.D.N.Y. 2021), Ramon Jaquez sued DermPoint, a California corporation that makes skincare products, because he was unable to buy products from its inaccessible website.
The court first noted that Mr. Jaquez’s allegations were sufficiently specific—an interesting comparison to the ridiculously high hurdles that the same court made Albert Rizzi jump through (just comparing those two cases could be an interesting blog in itself). But the more interesting part to me was the comfort with which the court noted that Title III of the ADA applied to purely online companies.
Multiple district courts in this circuit — including this one — have held that websites qualify as places of public accommodation, even when they are not attached to a traditional brick-and-mortar store... The ADA, like other broadly worded statutes, ought to be read to "reflect an intentional effort to confer the flexibility necessary to forestall ... obsolescence." Applying the ADA "to today's ubiquitous world of e-commerce ... vindicates Congress's intent that the ADA remedy discrimination against the disabled in all aspects of society."
Jaquez v. Dermpoint, Inc., 2021 U.S. Dist. LEXIS 96067, *7-8 (S.D.N.Y. 2021).
Getting Past "Place"
The Southern District’s approach in Dermpoint makes sense to me. Lawyers tend to argue over how many angels can dance on the head of a pin. And so too they will argue over whether the ADA’s language of “place of public accommodation” really does require a physical “place.” While I haven’t studied this issue carefully, I do know that the origin of the phrase “place” of public accommodation in the ADA doesn’t have much legislative history. Certainly, in 1990 when the ADA was passed, there were many businesses (such as mail order companies) that provided goods and services outside of traditional bricks-and-mortar establishments—and I doubt anyone thought that those companies would be outside of the reach of the ADA. Instead, I always assumed that the insertion of the word “place” was a historic anomaly—a leftover from the way in which the 1964 Civil Rights Act was written (Section 201(a) of the original 1964 Act stated, “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin”).
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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