Website class actions alleging violations of the Americans with Disabilities Act (“ADA”) continue to dominate the court systems. These lawsuits are indiscriminate involving businesses of all sizes across a myriad of industries. Commonly, these lawsuits involve a plaintiff who suffers from a disability and attempted to access a business’s website, alleging that the website itself should be considered a place of public accommodation, but their disability hindered their enjoyment of the business’s services. Nevertheless, a court in the Eastern District of New York has unequivocally concluded that a website is not a “place of public accommodation” within the meaning of Title III of the ADA.
Winegard v. Newsday LLC
On July 31, 2019, Plaintiff Jay Winegard, a legally deaf individual residing in Queens, New York, filed an action in the Eastern District of New York against the news service provider Newsday. Winegard alleged that Newsday violated the Americans with Disabilities Act, the New York State Human Rights law, and the New York State Civil Rights Law, and the New York City Human Rights Law in failing to provide closed captioning on two of the videos it hosted on its website.
On May 1, 2020, Newsday filed a Motion to Dismiss, arguing, in relevant part, that Newsday is not a place of public accommodation within the meaning of Title III of the ADA.
On August 16, 2021, while initially observing that the Second Circuit has not squarely resolved whether a website itself is a place of public accommodation, the Eastern District of New York concluded that “the ADA excludes, by its plain language, the websites of businesses with no public-facing, physical retail operations from the definition of” places of public accommodation. In reaching its conclusion, the court relied heavily upon the text of the ADA, noting that the ADA’s definition of places of public accommodation were overwhelmingly comprised of physical locations.
Echoing the recent Eleventh Circuit holding in Gil v. Winn-Dixie, the court further called upon Congress to clarify whether the places of public accommodation include websites and further remarked that in the thirty-one years since the passage of the ADA, Congress has failed to add non-physical places to the definition of places of public accommodation.
Finally, the court in Winegard concluded that previous Second Circuit reliance on Pallozzi v. Allstate Life Insurance Co. is misplaced, as that matter dealt with the enjoyment of insurance services which still had to procured at a physical location.
What does this mean going forward?
Whereas the Court’s decision in Winegard may not initially upend all website-based ADA claims in the Second Circuit, it is yet another example of the eroding argument that websites are automatically places of public accommodation. To that end, it is important that companies are proactive and prioritize accessibility to put themselves into a legally defensible position.
At Octillo, we have a team of highly skilled attorneys and technologists who are uniquely situated to help clients navigate website accessibility and work towards national and international standards with other privacy and security laws. Octillo works with clients at all stages of accessibility analysis and is here to help make your company ADA compliant and help ensure your company has the right tools in place to mitigate risk.