New York & Company, Inc.
Party City
Scribd, Inc.
Dominos Pizza, LLC

These are just a few names of companies who have recently endured legal actions alleging violations of Title III of the Americans with Disabilities Act (“ADA”) with respect to public accommodations.[1] The places of public accommodations at issue: Websites.

The ADA was enacted in 1990 as a civil rights law to prohibit discrimination against individuals with disabilities. The Act is divided into five titles. Title III prohibits discrimination on the basis of disability in places of public accommodation.[2] The Act lists twelve categories that qualify as places of public accommodation,[3] but websites and web-based services are not mentioned. Despite legislative intent that the ADA should adapt to changes in technology,[4] the courts have reached varying conclusions as to the statute’s application to web-based sites as places of public accommodation.

The First, Seventh, and Second Circuits hold that places of public accommodations apply to more than physical spaces.[5] The Ninth, Third, and Sixth Circuits indicate that there must be a connection between the place of alleged discrimination and a physical place.[6] The Eleventh Circuit reiterates the nexus between the physical place and the non-physical place of discrimination, explaining the court decisions do not propose that places “of public accommodation may exclude persons with disabilities as long as the discrimination occurs offsite….”[7] However, the U.S. District Court for the Middle District of Florida recently broke from the Eleventh Circuit by holding that the “Plaintiff may not claim a violation of Title III based on an internet website’s accessibility” because the website is not a “physical or public accommodation under the ADA.”[8]

To establish a claim under Title III, a plaintiff must allege (1) that he/she is disabled within the meaning of the ADA, (2) that the defendant owns, leases, or operates a place of public accommodation, and (3) that the defendant discriminated against the plaintiff by denying him/her a full and equal opportunity to enjoy the services the defendant provides.[9] Private individuals may bring an action against an entity for violations of Title III, but only injunctive relief – not money damages – is available to the individual plaintiff under Title III.[10]  An action may also be brought by the Attorney General whenever there is reasonable cause to believe a pattern or practice of discrimination has occurred or discrimination that raises an issue of general public importance has occurred. [11] Unlike private actions, in an action instituted by the Attorney General, the court may assess monetary damages of up to $50,000 for a first violation, and up to $100,000 for any subsequent violation.[12]

Since January 1, 2017, more than a dozen private complaints of Title III violations regarding websites have already made their way through the federal courts, and many more are in queue. A Westlaw docket search for Juan Carlos Gil returned 64 lawsuits filed by the plaintiff between April 8, 2016 and May 31, 2017 in the U.S. District Court for the South District of Florida. Mr. Gil’s allegations include claims that, “[he] attempted on several occasions to utilize defendant’s website, but was unable to enjoy full and equal access due to numerous features that are inaccessible to the visually impaired individuals.”[13] And, “Defendant’s website has not been designed to interface with the widely and readily available technologies that can be used to ensure effective communication, causing plaintiff, who is legally blind, to be impeded from purchasing goods and services made available to the public.”[14] A Westlaw docket search for the name Rachel Gniewkowski returned 11 similar lawsuits filed by the plaintiff between September 7, 2016 and April 12, 2017 in the U.S. District Court for the West District of Pennsylvania, five of which were filed between April 4 and April 12, 2017.

Without a promise of money damages, why are the courts seeing an influx of Title III claims by individuals? “The primary object … in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations and whether discrimination has occurred…”[15] but the court system may also be a way for plaintiffs to force settlements with the defendants. Although the courts cannot award money damages to the individual plaintiffs, according to a November 1, 2016 Wall Street Journal article by Sara Randazzo, “[j]udges often push the lawsuits into mediation, which then are resolved in private settlements, according to a review of nationwide court dockets.”[16]

What can businesses do to avoid possible Title III violations, costly lawsuits, and forced settlements? The Department of Justice says it will publish accessibility regulations for websites in 2018. In the interim, companies who operate public websites and online businesses are not only vulnerable to lawsuits for alleged violations, but also possibly missing out on a wider customer base if visually impaired consumers cannot take full advantage of the company’s online commerce. The National Federation of the Blind (“NFB”) says websites and applications that use an exclusively visual interface and that lack any non-visual means of operation are inaccessible to the blind.[17]  According to Amherst College in Amherst, Massachusetts, “[m]ost sighted people look at a whole page at once and unconsciously prioritize the content based on type-size, the prominence of graphics, and other visual cues.”[18] Visually impaired persons must use screen reader software that converts graphical information found on websites to audio or Braille formats.[19] Such screen readers do not “allow the user to grasp a page in [a] holistic manner so quickly.”[20] Until the Department of Justice publishes accessibility regulations and the courts uniformly define places of public accommodations as including or excluding online spaces, websites and web-based service providers will continue to be challenged. If your company operates online or offers a web-based service, there are steps you should take to reduce the risk of Title III violations and better ensure your services are accessible to both visual and non-visual consumers. First of all, contact your IT departments or web designers to assess your company’s current web design and encoding. Many digital service providers and social web groups offer compliance suggestions online (ironically). For a more thorough understanding of the law and the risks of non-compliance, contact legal counsel familiar with Title III of the ADA.


[1] Gathers v. New York & Company, Inc., 2017 WL 387083 (W.D. Pa. 2017); National Federation of the Blind v. Scribd Inc., 97 F.Supp.3d 565 (Vt. 2015); Robles v. Dominos Pizza, LLC, 2017 WL 1330216 (9th Cir. 2017).
[2] 28 CFR Part 36 §36.101(b).
[3] 42 USC 12181-12189.
[4] See H.R. Rep. 101-485(II) at 108 (1990).
[5] See Carparts Distrib. Ctr., Inc. v. Auto Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994) and Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7t h Cir 1999) and Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32-33 (2d Cir. 1999).
[6] See National Federation of the Blind v. Scribd Inc., 97 F.Supp.3d 565 (Vt. 2015) citing Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) and Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998), and Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1011 (6th Cir. 1997).
[7] National Federation of the Blind v. Scribd Inc., 97 F.Supp.3d 565 (Vt. 2015) citing Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279, 1283 (11th Cir. 2002).
[8] Kidwell v. Florida Comm’n on Human Relations, 2017 WL 176897 at *5 (January 17, 2017).
[9] See National Federation of the Blind v. Scribd Inc., 97 F.Supp.3d 565 (Vt. 2015), citing Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008).
[10] 28 CFR Part 36 §36.501(b).
[11] 28 CFR Part 36 §36.503.
[12] Id. at §36.504
[13] Gil v. LLC, 1:17-CV-22037 (May 31, 2017).
[14] Gil . Cotton On USA, Inc., 1:17-CV-21917 (May 23, 2017).
[15] Id. at § 36.101(b).
[17] National Federation of the Blind v. Scribd Inc., 97 F.Supp.3d 565, 567 (Vt. 2015).
[19] National Federation of the Blind v. Scribd Inc., 97 F.Supp.3d 565, 567 (Vt. 2015).