Before getting started on the blog entry of the week, I want to congratulate the Stanford Cardinal and the Baylor Bears for winning the women’s and men’s NCAA Division I basketball titles.

 

It is interesting how my decision on to what to blog on works from week to week. Sometimes I have a bunch of cases in my pipeline and sometimes I don’t. Also, sometimes I can’t get to my pipeline because of breaking developments. This is one of those situations where I have a bunch of cases in my pipeline but there was a breaking development. In particular, the 11th Circuit on April 7, 2021 came down with a published opinion in the Internet accessibility case of Gil v. Winn-Dixie stores, Inc., here185188214213215217217. I previously blogged on the District Court opinion here186189215214216218218. The title for the blog entry (I am a huge Star Trek fan), is intentional because the 11th Circuit has boldly gone where no one has gone before so to speak. As usual, the blog entry is divided into categories and they are: where we have been with respect to Internet accessibility cases; majority opinion introductory facts and standing; majority opinion websites are not places of public accommodation; majority opinion Winn-Dixie website does not otherwise violate title III; dissenting opinion ADA generally; dissenting opinion accommodation necessary; dissenting opinion services, privileges, and advantages of the place of public accommodation are involved; dissenting opinion effective communication obligations were violated; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Where We Have Been with Respect to Internet Accessibility Cases

 

Until April 7, 2021, the Internet accessibility cases broke down into four categories, which we have discussed in our blog before. Those categories were: 1) title III only applies to physical places (Access Now, which was overruled by DOT regulations discussed here187190216215217219219); 2) title III applies even where there is a lack of a physical space (Doe, 7th Circuit, Carparts, 1st Circuit); 3) title III applies to Internet sites if the Internet site is a gateway to a brick-and-mortar store (Cullen, 9th Circuit, which we discussed in a comment to the Cullen oral argument blog entry here188191217216218220220); 4) title III applies to Internet sites if it is of the type of what is going on in 42 U.S.C. §12181(7) (a reasonable interpretation of South Dakota v. Wayfair, which we discussed here189192218217219221221, DOJ amicus brief in MaGee v. Coca-Cola, which we discussed here190193219218220222222). The trend had been gateway cases but the betting line was on “of the type,” in light of South Dakota v. Wayfair. Now, it turns out that the 11th Circuit decided to go with a completely different approach. So, we now have a fifth category, which I am calling the ADA never applies to Internet sites but that isn’t the question needing consideration. Also, by way of full disclosure I know attorneys on both sides of this case, though I am not involved with the case on either side.

 

II

Majority Opinion (Judge Branch),  Introductory Facts and Standing

 

  1. The focus of the case is on refilling prescriptions and on accessing store coupons. The majority opinion ignores the store locator issue, but it does get a mention in the dissenting opinion.
  2. In a footnote, the 11th Circuit noted that the parties agreed in their joint pretrial stipulation that Winn-Dixie’s website was not designed specifically to integrate with screen reader software.
  3. In a footnote, the court said plaintiff’s claims essentially boil down to Winn-Dixie violating title III of the ADA because it discriminated against him on account of his visual disability by failing to provide auxiliary aids and services to make its website accessible with screen reader software so that he could not fully and equally enjoying the goods, services, privileges, or advantages of Winn-Dixie per 42 USC §§12182191194220219221223223(a),(b)(2)(A)(iii).
  4. Plaintiff’s allegations that he suffered an injury both when he was unable to avail himself of the goods and services on the website as well as when the website interfered with his ability to equally enjoy the goods and services of Winn-Dixie’s doors were a concrete and particularized injury that would continue if the website remains inaccessible. Therefore, plaintiff has standing.

 

III

Majority Opinion Websites Are Not Places of Public Accommodations

 

  1. 42 U.S.C. §12182192195221220222224224(a) provides that, “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation (emphasis in court’s opinion), by any person who owns, leases (or leases to), or operates a place of public accommodation.”
  2. 42 U.S.C. §12181193196222221223225225(7) lists the categories of what places of public accommodations are. That section of the ADA is an expansive list of physical locations that are public accommodations, including in subsection F a grocery store. The list covers most physical locations that individuals will find themselves in their daily lives. However, the list does not include websites.
  3. Of the 12 types of locations that are public accommodations, all of them are tangible, physical places. No intangible places or spaces, such as websites, are listed. Therefore, public accommodations are limited to actual physical places (in a footnote, the court noted that the First Circuit, and the Seventh Circuit have taken different views).

IV

Majority Opinion Winn-Dixie’s Website Does Not Otherwise Violate Title III

 

  1. Title III of the ADA at §§42 U.S.C. §12182194197223222224226226(b)(2)(A)(iv), (b)(2)(A)(iii), applies to both tangible barriers, physical and architectural barriers that prevent a person with a disability from entering an accommodation’s facility and accessing its goods, services and privileges, as well as intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures respecting a person with a disability ability to enjoy the defendant entity’s goods, services, and privileges.
  2. Winn-Dixie’s limited use website, although inaccessible by individuals who are visually disabled, does not function as an intangible barrier to an individual with a visual disability accessing the goods, services, privileges, or advantages of Winn-Dixie’s physical stores because Winn-Dixie’s website only has limited functionality. That is, it is not a point-of-sale and all purchases must occur at the store. Furthermore, all interaction with Winn-Dixie that can be initiated on the website must be completed in store.
  3. Nothing prevents the plaintiff from shopping at the physical store and he had done so for many years before he freely chose to stop shopping there. Although the plaintiff was not always happy with the speed or privacy of the service he received at the pharmacy when he physically shopped there, nothing prevented the plaintiff from refilling his prescriptions during his time as a Winn-Dixie customer. For years, plaintiff used paper coupons at Winn-Dixie’s stores despite any inconveniences such use entailed.
  4. A website itself is not a place of public accommodation. Accordingly, plaintiff’s mere inability to communicate with and accept the services available on the website does not necessarily mean that Winn-Dixie is violating the ADA. Instead, for there to be an ADA violation the inaccessibility of the website must serve as an intangible barrier to plaintiff’s ability to communicate with Winn-Dixie’s physical stores, which results in plaintiff being excluded, denied services, segregated, or otherwise treated differently from other individuals in the physical stores.
  5. While plaintiff asserted that he could not comprehend the website in an effective manner due to the absence of an auxiliary aid, plaintiff never asserted that he would not able to communicate effectively with, or access the services offered in, the physical stores.
  6. For 15 years, plaintiff fully and equally enjoyed the services in question of filling prescriptions and using coupon in Winn-Dixie’s physical stores.
  7. As a footnote, the court said the following: title III of the ADA only applies to tangible physical spaces; title III of the ADA does apply to intangible barriers that serve to restrict an individual with a disability access to goods, services, and privileges of a place of public accommodation; and title III of the ADA may be violated if a place of public accommodation excludes, denies services, segregates, or otherwise treats a person with a disability differently than other individuals because of the absence of auxiliary aids.
  8. The 11th Circuit had never adopted the Gateway approach of other Circuits and declines to do so here.
  9. Saying that the website constitutes a service, privilege, or advantage and that the failure of a person with the disability to be able to access that website’s content violates the ADA because they are not receiving a comparable or like experience to those of customers without visual disabilities proves too much. Under that approach, virtually anything, tangible or intangible, could be deemed a service, privilege, or advantage. From reading the text of title III with a view to its overall statutory scheme, title III cannot be interpreted in such a broad way.
  10. In a footnote, the court said that the plaintiff was no less at a disadvantage than a sighted customer lacking Internet access and therefore could not access the streamlined online prescription refill process. Also, the ADA does not mandate that in order to have full and equal enjoyment of Winn-Dixie’s physical stores goods and services, visually disabled customers must be afforded the virtually identical experience to those of sighted customers. Such a reading of title III is plainly unrealistic because it makes an unattainable demand.
  11. Title III of the ADA does provide that auxiliary aids and services are a reasonable accommodation. However, that accommodation must also be per 42 U.S.C. §12182195198224223225227227(b)(2)(A)(iii), necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids.
  12. In a footnote, the court noted that the requirement that an auxiliary aid or service be necessary came from dicta in from the PGA Tour v. Martin196199225224226228228 case decided by the Supreme Court. However, dicta from Supreme Court cases is not something to be lightly cast aside and at a minimum is of considerable persuasive value. It is not unusual at all to afford substantial, if not controlling deference to dicta from the United States Supreme Court because respect for the rule of law demands nothing else.
  13. Plaintiff is able to enjoy fully and equally the goods, services, facilities, privileges, advantages, or combinations of Winn-Dixie’s physical stores as contemplated by title III of the ADA.
  14. The United States constitutional structure does not permit the court to rewrite the statute that Congress has enacted. Accordingly absent congressional action broadening the definition of places of public accommodation to include website, ADA liability cannot be extended to the facts presented in this case where no barrier to the access demanded by the statute exists.

V

Dissenting Opinion (Judge Jill Pryor), ADA Generally

 

  1. It is undisputed that Winn-Dixie’s website is incompatible with screen reading technology.
  2. Inferior treatment amounts to disability discrimination under title III by the operator of the place of public accommodation.
  3. Winn-Dixie does not dispute that it failed to provide an auxiliary aid when it refused to make its website compatible with screen reading technology. They also provided no alternative way for a person with a visual disability to request the express prescription refills or digitally link the coupons to the rewards cards so that discounts could be applied seamlessly and check out, which are privileges and advantages enjoyed by sighted customers.
  4. In a footnote, the dissent agrees with the majority opinion that websites in and of themselves are not places of public accommodations under the ADA. The dissent goes on to note that the District Court twice declined to reach that issue and plaintiff denied he was discussing that issue in his arguments. Accordingly, whether Internet sites are places of public accommodation by themselves should not have been an issue that the court addressed at all.
  5. The ADA’s guarantee of freedom from discrimination for persons with disabilities is broad because it prohibits places of public accommodation from denying people with disabilities the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodations.
  6. The ADA at 42 U.S.C. §12182197200226225227229229(b)(2)(A)(iii) also protects people with disabilities from being treated differently. Here, Winn-Dixie affords favorable treatment to sighted customers who could take advantage of their Internet site in a way that their customers without sight could not.
  7. For plaintiff to use coupons at Winn-Dixie, it required him to ask a friend to read the coupon to him from a newspaper or request the help of Winn-Dixie employees. Employees were sometimes annoyed by his requests for help.
  8. Through the website’s prescription feature, sighted customers in the privacy of their own home could request refills in advance and then pick up the medication at the store when ready. They also could transfer a prescription to be filled at a different Winn-Dixie store. Plaintiff sought to use that feature because it would afford him greater independence, convenience, and privacy, by allowing him to obtain prescription refills without having to disclose his medical information where others could overhear.
  9. By using the website’s coupon feature, sighted customers could click on manufacturers coupon displayed on the website to link their coupon to their customer rewards cards. That way, when the customer shopped and scanned his reward card the coupon discount was applied automatically to his order. In fact, the website tool was the only way a customer could link a coupon to his reward cards for automatic application at checkout at Winn-Dixie stores. Using that feature would give the plaintiff greater independence by making it possible for him to find and use coupons without having to ask friends or store employees for help. On these issues, the District Court found the plaintiff’s testimony highly credible.
  10. The purpose of the ADA at 42 U.S.C. §12101198201227226228230230(a)(7) is to ensure full participation, independent living, and economic self-sufficiency for persons with disabilities.
  11. The ADA at 42 U.S.C. §12182199202228227229231231(b)(2)(A)(iii) requires places of public accommodations to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently from other individuals because of the absence of auxiliary aids and services unless a fundamental alteration or an undue burden exists.
  12. Plaintiff is clearly a person with a disability under the ADA.
  13. Winn-Dixie’s physical stores are places of public accommodations under the ADA.
  14. Plaintiff’s screen reading software is an auxiliary aid and service, 28 C.F.R. §36.303200203229228230232232, under the ADA.
  15. Winn-Dixie raised no argument that making its website accessible to visually impaired individuals would fundamentally alter its operations or result in an undue burden.

 

VI

Dissenting Opinion Accommodation Is Necessary

 

  1. To determine whether accommodation is necessary under title III of the ADA, you have to look at how the public accommodation’s offering are used by customers without disabilities and then ask whether the operator of the public accommodation has provided its customers with disabilities with a like experience and equal enjoyment.
  2. If the operator of a public accommodation has failed to provide customers with disabilities with an experience comparable to that of customers without disabilities, then an accommodation is necessary.
  3. Visually impaired customers had to request prescription refills inside Winn-Dixie stores. The customer had to go to the store and wait in line to speak to a pharmacist. After waiting in line, the customer may have had to verbally request medication by name in a public setting where other customers might overhear. Once the refill was requested, the pharmacy had to take certain steps required by state law before dispensing the prescription. In addition, pharmacy employees had to determine whether the customer had a prescription drug benefit plan covering the refill and how much the customer should be charged. Such a process might involve a wait time of 20 to 30 minutes until the refill was ready. On the other hand, a sighted customer submitting an online prescription refill request through Winn-Dixie’s website was offered a streamlined, faster process offering greater privacy. By using the Winn-Dixie’s website, sighted customers can avoid verbally requesting the refill at the in person store. Finally, by taking advantage of the Internet prescription refill option, a sighted customer would save a great deal of time when they showed up to pick up the medication and such time-saving was noted on the Winn-Dixie website.
  4. Nothing in the record suggested that Winn-Dixie offered customers any means other than its website to request prescription refills in advance of arriving at the physical store.
  5. After comparing the experiences of Winn-Dixie’s disabled customers to customers without disabilities regarding express prescription refills, the dissent cannot understand how the majority could possibly conclude that customers with disabilities, such as the plaintiff, were offered equal treatment and like experience.
  6. A visually impaired customer wanting to use manufacturer’s coupons to purchase items at a Winn-Dixie store had to page through a newspaper, magazine, or other print for coupons of products he wanted to purchase, clip the coupon, bring them to the store, and present them to a cashier at checkout while needing to ask for the help of another when he cannot perform those tasks himself. On the other hand, a sighted customer can simply visit the website, which centralizes manufacturer’s coupons, and digitally link the desired coupon to his account. When he scanned his customer reward card at checkout, the coupon discount were applied automatically to his order. Such a process failed to offer like treatment to customers with disabilities when compared to customers without disabilities. In fact, such a process privileges customers without disabilities by offering them a more convenient and effective way to obtain discounts inside Winn-Dixie stores.
  7. In a footnote, the dissent says that the dicta cited in PGA Tour v. Martin201204230229231233233 is of no help to the majority because it’s application turns upon how the situation is conceptualized.
  8. When a website’s store locator feature is inaccessible to visually impaired customers, which was the case here, plaintiff must gather the information elsewhere. The 11th Circuit has already said, in a case we previously discussed here202205231230232234234, that a store locator feature on a website that is inaccessible to visually impaired customers violates the ADA.
  9. Plaintiff could only enjoy markedly inferior versions when compared to persons without disabilities with respect to filling prescriptions and using coupons.

VII

Dissenting Opinion Goods, Services, Privileges, Advantages, of a Place of Public Accommodations Are Involved in This Case.

 

  1. The ADA prohibits discrimination in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or combinations of any place of public accommodation. 42 U.S.C. §12182203206232231233235235(a).
  2. The dictionary definition of “service,” is “useful labor that does not produce a tangible commodity.” A “privilege,” is “a right… granted as a peculiar benefit, advantage, or favor.” And “advantage,” is “a more favorable or improved position or condition.” Under the definition, Winn-Dixie offers services, privileges, and advantages when it empowers customers to request the express prescription refills and link coupons to their reward cards on their website.
  3. A service is provided when a customer requests a service provider to perform an activity, the service provider performs that activity, and the customer pays the service provider. For Winn-Dixie customers using the online prescription refill tool, a critical step in that process, actually requesting the service, occurred online. Therefore, it makes no sense for the majority to conceive of Winn-Dixie’s prescription service as completely unhooked from the website.
  4. The prescription refill and coupon linking tools are clearly privileges or advantages. Ordering express prescription refills from the privacy of one’s home and using the coupon linking tool improved the position of the Winn-Dixie customer. After all, that is precisely why Winn-Dixie provides its customers with those features.
  5. A plain meaning view of what a service, privilege, or advantages is not overly broad. Instead, it is perfectly consistent with a plain reading of title III of the ADA. Title III of the ADA clarifies that it not only bars discrimination occurring in places of public accommodation, but it also bars discrimination in the goods, services, facilities, privileges, advantages, or accommodation offered by places of public accommodations, such as Winn-Dixie stores.
  6. 42 U.S.C. §12182204207233232234236236(b)(2)(A)(iii) applies to the services OF a place of public accommodation and not to services IN a place of public accommodation.
  7. The ADA is a sweeping piece of legislation. So, it is hardly surprising that its provisions prohibiting discrimination are broad and inclusive. To interpret the ADA in any other manner offends not only the principle that term should be interpreted according to the ordinary meaning, but also offends fundamental canons of statutory construction that the words of the statute must be read in their contexts with a view to their place in the overall statutory scheme.
  8. In effect, the majority opinion’s conception of Winn-Dixie’s offering distorts the meaning of “services,” under the ADA and strikes the word “privileges” and “advantages” from it altogether.
  9. Plaintiff’s enjoyment of Winn-Dixie in-store prescription and coupon services was not full and equal but partial and lesser. Winn-Dixie’s sighted customer received greater protections and were also relieved of the need to wait in-store for pharmacists to refill their prescriptions. While Winn-Dixie’s sighted customer could collect coupons online and use them instantly at checkout, plaintiff was left defined in the sample physical coupons and present them by hand.
  10. In a footnote, the dissent said that the majority opinion’s concern about the dissent’s interpretation of service, privileges, and advantages being too sweeping, doesn’t wash. After all, places of public accommodations have the affirmative defenses of fundamental alteration or undue burden.
  11. In another footnote, the dissent notes that whether Winn-Dixie is required to have a website is irrelevant because federal antidiscrimination laws say if a website is offered it cannot be provided in a discriminatory manner. That same footnote goes on to say that the ADA requires the court to compare Winn-Dixie’s treatment of people without disabilities ready to enjoy its services to persons with disabilities ready to enjoy its services. It then must consider how the facility use by guests without disabilities compare to guests with disabilities to figure out whether a like experience exists. It doesn’t make any difference whether Winn-Dixie treated people without disabilities ready to enjoy it services like other individuals who because of their personal circumstances were not ready or did not want to enjoy it services.
  12. The majority citation of Rendon and Robles doesn’t apply to this situation because those cases held that a person can state a title III claim when inaccessible technology prevents them from accessing a public accommodation’s offering. Those cases did not consider whether a public accommodation might also violate the ADA when it offers an inaccessible website to visually impaired customers that serves as the only way for a customer to access indoor privileges or advantages.

 

VIII

 

Dissenting opinion Effective Communication Obligations Violated

 

  1. In a footnote, the dissent says the majority opinion is wrong in asserting that Rendon and Robles are distinct from this case in any legally significant way because the ADA prohibits discrimination that not only includes individuals with disabilities but also discrimination that treats people with disabilities differently and denies them the full and equal enjoyment of the offerings of the place of public accommodation.
  2. The argument that because the plaintiff was able to enjoy fully and equally the services in question, filling prescriptions and using coupons, there is no ADA liability doesn’t wash for several reasons. First, the services available on the website are not unhooked from the services offered by Winn-Dixie’s stores. Second, the website is a tool of communication that Winn-Dixie provided to convey information and receive information from customers. Accordingly it makes no sense for the majority opinion to say that plaintiff never asserted that he would not able to communicate effectively with the physical stores. Third, the website’s inaccessibility prevented plaintiff from accessing the information that Winn-Dixie was conveying to its sighted customers and it also prevented him from conveying information to Winn-Dixie.
  3. The majority opinion’s contention that plaintiff’s inability to access the website prevented him from communicating only with the website and not with the physical stores defies reality. That is, a customer’s ability to access a communication technology and his ability to communicate effectively with the store are causally related propositions. That is, plaintiff was unable to effectively communicate with Winn-Dixie’s stores precisely because he was unable to use their website.
  4. An auxiliary aid, such as screen reading software, was necessary to ensure effective communication between the plaintiff and Winn-Dixie’s physical stores. Winn-Dixie by failing to furnish that auxiliary aid or any alternative violated 28 C.F.R. §36.303205208234233235237237.
  5. In a footnote, the dissent agrees with the majority opinion to not utilize the gateway approach adopted by other Circuits. The dissent also agrees with the majority opinion that the question is whether a customer with a disability was precluded from fully and equally enjoying the offerings of a place of public accommodation.
  6. The majority opinion’s errors will have widespread consequences. Places of public accommodation, such as stores and restaurants, increasingly use websites and apps to offer their customers safer, more efficient, and more flexible access to goods and services and physical stores. As the dissent reads the majority opinion, stores and restaurants now have license to provide websites and apps that are inaccessible to visually impaired customers so long as those customers can access an inferior version of those offerings. Such a result cannot be squared with the ADA.

 

X

Thoughts/Takeaways

 

  1. This case is undoubtedly headed to the Supreme Court for two reasons. First, plaintiff lawyers have said that they are going to take it to the United States Supreme Court. Second, in the courts generally there is a five way split as to how to deal with these types of cases. There is a three way split in the Circuits alone (physical space not necessary to be covered by title III; gateway; and the 11th Circuit approach focusing on full and equal enjoyment of goods, services, and advantages). At the Supreme Court level, two critical cases will be South Dakota v. Wayfair, which we discussed here206209235234236238238, and Bostock v. Clayton County, which we discussed here207210236235237239239. South Dakota v. Wayfair will be a critical case because if you recall from our previous discussions, the Supreme Court stated in literally 23 different ways that a place could be something other than a physical space, albeit when it came to taxation. Bostock will be critical because of its holding that words mean exactly what they mean regardless of when the word was written into a particular piece of legislation. Therefore, in 2021, a place of public accommodation per South Dakota v. Wayfair does not need to be a physical place. Another critical piece will be 42 U.S.C. §12101208211237236238240240, the purpose clause of the ADA, which contains various reasons why the ADA should be construed broadly, such as its purpose being to ensure full participation, independent living, and economic self-sufficiency for persons with disabilities, among other items in that particular statutory section.
  2. The 11th Circuit went somewhere no one has otherwise gone before (with apologies to Star Trek). The particular approach taken by the 11th Circuit will be very hard for courts to apply in practice. At a minimum, you will need testimony talking about why a particular individual is not fully and equally enjoying the service, goods, or advantages of the place of public accommodations. You will also have a tremendous amount of litigation over whether a service, good, or advantage is even involved. Considering this type of standard, how a case goes may very well depend upon the particular judge’s personal familiarity with the disability world. That is, if the judge a person with a disability him or herself, identifies as having a disability, has a close friend with a disability, or has a family member with a disability. Considering the standard is full and equal enjoyment, such personal knowledge may make a huge difference in how these kinds of cases come out in the future, assuming this approach is the one that prevails.
  3. The dissenting opinion noted that third-party websites were also involved. Implicitly, though Judge Pryor did not say explicitly, she was saying that the ADA is a nondelegable duty, which we discussed here209212238237239241241.
  4. Title III talks about discrimination by any place OF public accommodation and NOT in a place of public accommodations.
  5. It is incorrect to say that 42 U.S.C. §12181210213239238240242242(7) are all tangible physical places. As noted by the First Circuit in Carparts, travel services have been run virtually for years and years and are listed in 42 U.S.C. §12181(7)(F).211214240239241243243
  6. After this decision, what is an intangible barrier is very unclear.
  7. An argument exists that this decision as well as some decisions interpreting the gateway decision requires persons with disabilities to actually use in-store services when persons without disabilities do not have to do that if they are to bring forth Internet accessibility claims.
  8. Very interesting that even the dissenting judge agreed that the website itself is not a place of public accommodation. The dissenting judge did not need to go that far in light of the decisions already on the books. It is also interesting that it seems that the plaintiff purposely as a matter of strategy tried to avoid the question of whether the Internet itself was a place of public accommodation.
  9. Just what is a “like experience,” is a very amorphous concept. It certainly does not mean identical. It does mean inferior, but what is inferior is going to vary quite a bit from judge to judge and depends upon the judge’s own disability awareness.
  10. Both the majority opinion and the dissenting opinion talk about how an auxiliary aid or service must also be necessary in addition to something that is not an undue burden or a fundamental alteration. What is interesting about the auxiliary aid or service here is that the individual already has the auxiliary aid or service, the screen reading software, but the problem is the place of public accommodation does not set itself up to allow that individual to use their auxiliary aid. Is that the same thing as a place of public accommodation providing an auxiliary aid or service?
  11. An often overlooked item when it comes to auxiliary aids and services is that the auxiliary aid and service might neither be a fundamental alteration or an undue burden but it also has to be necessary. This case makes it clear that the “necessary,” requirement is not something to be overlooked in the future.
  12. The dissent offers clarity as to what is a service, privilege, or advantage in 42 U.S.C. §12182(a).
  13. The case creates a lot of confusion about what an intangible barrier might be in the future.
  14. There is case law out there that says a service does not necessarily have to be one involving an exchange of money to be covered under the ADA.
  15. I agree with the dissent that this decision will make it much harder for persons with disability to prevail on their Internet accessibility claims, though the court does not create a high bar for standing. It is very unclear to me whether other Circuits will adopt this approach as it goes in a completely different direction than we have seen previously. Also, I think it likely that the Supreme Court will take this case up. What the Supreme Court will do is anybody’s guess. As I have mentioned before, people with disabilities have been very successful at the Supreme Court level outside of the employment context. For reasons mentioned in this blog entry, that success may continue with this case. If that success does continue, what we don’t know is how will the Supreme Court get there. Stay tuned. This will be a very very interesting case to follow.