Over the next few weeks, we will be sharing guest posts from our member firms with the Florida Law Alliance, who will be producing an employment law conference on November 10, 2017, at the Sonesta Fort Lauderdale Beach Hotel.
Today’s post is from Craig Salner, a partner at the Clarke Silverglate law firm in Miami:
Most South Florida practitioners are familiar with the barrage of recent lawsuits against places of public accommodation challenging their equal accessibility for the disabled. The Americans with Disabilities Act (“ADA”), a statute more known for its ban on disability discrimination in the workplace, has a section known as “Title III” which requires places of public accommodation to provide equal access to persons with disabilities. ADA Title III requirements typically have been applied to components of a business’s physical structure – appropriate linking of the parking lot to the adjacent sidewalk, sufficient main floor space for a wheelchair-bound patron to ambulate between and around aisles, bathrooms with sufficient space to maneuver with reachable soap and paper dispensers, etc.
Successful ADA Title III litigants are entitled to injunctive relief (i.e., the accessibility flaws must be remedied) plus attorney’s fees. Despite the lack of monetary damages available to litigants, ADA Title III litigation has spiked in South Florida with the emergence of certain serial “tester” plaintiffs – specific individuals claiming to test places of public accommodation for ADA Title III compliance and suing in instances of alleged non-compliance. Title III ADA lawsuits have nearly tripled nationwide in the last three years, rising from 2,722 in 2013 to 6,601 in 2016, including a 37 percent increase from 2015 to 2016. Florida is second only to California in the number of 2016 filings.
Are Internet websites places of public accommodation covered by Title III of the ADA?
Local trends are favoring the plaintiffs. The Eleventh Circuit’s most informative case ironically does not involve a website. In Rendon v. Valleycrest Productions, Ltd., ABC, 294 F. 3d 1279 (11th Cir. 2002), the Eleventh Circuit ruled on a challenge to the qualification requirements for the hit game show “Who Wants to Be a Millionaire?” A class of disabled individuals challenged the telephonic “fast finger” selection process that served as the initial barrier to trying out for the game show. The Court, in reversing dismissal, held that even though the telephonic process was not itself a place of public accommodation, it is a covered “intangible barrier” to enjoyment of a place of public accommodation under 42 U.S.C. § 12182(b)(2)(A)(iv).
Since Rendon, Florida District Courts examining challenges to company websites had, for the most part, roundly rejected the notion that websites in and of themselves are places of public accommodation. See Kidwell v. Florida Commission on Human Relations, 2017 WL 176897 (M.D. Fla. Jan. 17, 2017) (“Neither Busch Gardens’ nor SeaWorld’s online website is a physical or public accommodation under the ADA); Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002) (Internet website not a place of public accommodation within the meaning of Title III of the ADA) (J. Seitz).
However, the analysis does not end there. Florida’s federal Courts have mostly held, alternatively, that a website may be eligible for coverage under Title III of the ADA if a plaintiff establishes a sufficient nexus between the website and access to or enjoyment of the physical spaces with which a website is associated. See Gomez v. Bang & Olufsen America, Inc., 2017 WL 1957182, *3 (S.D. Fla. Feb. 2, 2017) (a website that is wholly unconnected to a physical location is generally not a place of public accommodation unless plaintiff alleges that a website’s inaccessibility impedes the plaintiff’s access to a specific, physical, concrete space and establishes some nexus between the website and the physical lace of public accommodation).
What constitutes a nexus between a company website and the physical structure(s) at which the companies transact business?
Companies naturally look to load as much useful content as possible to a website. In fact, most companies now offer e-commerce directly from their website. If the website is not itself a place of public accommodation, is a non-compatible website that offers direct shopping options a barrier to a disabled individual’s ability to enjoy the company’s physical structure?
A recent Southern District of Florida opinion, Gil v. Winn-Dixie Stores, Inc., 2017 WL 2547242 (S.D. Fla. Jun. 12, 2017), took a broad view of “nexus,” finding that as long as lack of access to a company website denies disabled individuals the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation,” it violates Title III of the ADA. Id. at *7. Among the privileges noted on the company website at issue, that of a grocery store chain, included “online pharmacy management,” access to “digital coupons,” and “store hours and locations.” Id.
While individual District Court opinions are not binding on other District Court judges, the Gil ruling is troublesome for companies. Virtually any company website contains at minimum, store or office locations and hours of operation. Also, based on the typical ADA Title III case, companies have little incentive to rely on the courts’ interpretation of this vague “nexus” standard. As referenced above, ADA Title III claims do not involve damage claims, just attorney’s fees.
Companies defending lawsuits face a Hobson’s Choice– 1) spend now to correct the alleged deficiency and minimize the plaintiff’s attorney’s fees; or 2) expend attorney’s fees and expert fees to defend the claim, risking a negative outcome requiring the company to make the demanded changes and to pay voluminous attorney’s fees. This reality, plus a weak standard, disincentivizes a vigorous defense.
Companies are wise to be proactive and to update websites to be compatible with software that enables Internet use for the visual and hearing impaired. If not, litigation with no easily definable “win” appears imminent.
Join us in Fort Lauderdale in November
If you would like to learn more on this topic, please join me at the Florida Law Alliance Fall Employment Law Conference on Friday, November 10, 2017, at the Royal Sonesta Fort Lauderdale Beach Hotel.
The Society for Human Resource Management (SHRM) has approved this course for 5.0 PDCs. HRCI has also approved this course for 5.0 Recertification Credits (General).The course has been approved for Continuing education credits are available.
Overnight Accommodations Needed?
A group rate of $159 (single or double occupancy) plus tax is available to all attendees the night of November 9. Reservations should be made by calling Sonesta Fort Lauderdale at 954-302-5205 and ask for the Florida Law Alliance rate. After October 9, reservations will be accepted based on availability at the prevailing hotel rate. The cost of overnight accommodations is not included in the registration fee.
Cost is $50/per person and includes a breakfast, lunch, valet parking and seminar materials.
Click here to register online.
Click here to download the seminar brochure.
If you have any questions, please contact me at firstname.lastname@example.org or by phone at 305-347-3124. You may also contact Gail Lamarche, Henderson Franklin’s Director of Marketing and Business Development at email@example.com or by phone at 239-344-1186.