Split Circuits Make More Trouble for the Disabled Community During COVID-19

By: Carly Malamud

Accessibility computer icon

The Americans with Disabilities Act (ADA) was signed into law in 1990 intending to provide legislated protection to individuals with disabilities.[1] Title III of the ADA protects individuals with disabilities from discrimination in “places of public accommodation,” which includes facilities that are privately operated and affecting commerce in enumerated categories.[2] Due to the infancy of public internet in 1990, the drafters provided no explicit guidance on Web accessibility.[3] Congress has yet to make a formal change to the statute and the DOJ, as the enforcing agency, has issued limited guidance.[4] In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) regarding plans to amend Title III to include guidance on Web accessibility for the local and federal government and public places of accommodation.[5] Ultimately, the DOJ abandoned the proposed Title III amendments in 2017 citing the need for further research and to evaluate “whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate.”[6] Separately, the federal government enacted mandatory standards regarding online accessibility for local and federal government sites.[7] The DOJ has continued to allow non-government websites to remain with a lack of clear standards resulting in a plethora of lawsuits and a split circuit regarding whether ADA standards apply to privately operated websites.[8]

The First,[9] Second,[10] and Seventh[11] Circuits have held that the ADA applies to all privately operated websites that fall within the Title III enumerated categories[12] while the Third[13], Sixth[14], Ninth[15], and Eleventh[16] Circuits have adhered to the “sufficient nexus test” to determine if a website qualifies as a place of public accommodation.[17] The “sufficient nexus test” originated out of the Eleventh Circuit’s holding in Gil v. Winn-Dixie Stores where the court held that because the grocery store chain’s website possessed a “sufficient nexus” to its physical stores, it was a place of public accommodation.[18] This reasoning provided the grounds for dismissing suits against e-commerce companies and allows companies without a storefront to skirt mandatory compliance with ADA guidelines solely because they do not possess physical store locations.[19] Alternatively, the broader interpretation stems from the principle that if or when online-only or e-commerce services fall into one of the enumerated places of public accommodation they must comply with accessibility standards under the ADA.[20] In response to the argument that the ADA only applies to places of public accommodation in public and thus must be accessed outside of a private residence, the Court in Nat’l Assoc. of the Deaf v. Netflix noted that if web accessibility is only enforced on organizations that are in public, “many businesses that provide services to a customer’s home – such as plumbers, pizza delivery services, or moving companies – would be exempt from the ADA.”[21]

Before the Coronavirus Pandemic took hold of the United States, this irregular enforcement allowed by the split circuit was problematic for people with Disabilities attempting to access some parts of the Web. Once the Coronavirus began effecting the United States, this inequity became an even greater problem. It has given rise to more possibilities for discrimination and has restricted access to essential care. In April 2020 Medicare data showed that primary care appointments conducted via telehealth increased by 43.4% compared to only two months before in February 2020.[22] It is not just medicine that saw an increase in online activity: e-commerce shopping increased drastically,[23] online learning became necessary,[24] the use of online work applications has more than doubled,[25] and the need to keep in contact with friends and family via online mediums became an integral part of peoples’ lives.[26] The notable increase in Web usage along with the fact that most websites do not comply with common Web-accessibility standards paints a stark image of this problem facing the Disabled community during the Coronavirus Pandemic.[27]

If these websites seeing increased traffic were only held to the “sufficient nexus” standard, many would be exempt from ADA compliance and thus permitted to discriminate against Disabled people. [28] The rule promulgated by the broad interpretation holds online only organizations to ADA standards if they independently fulfill one of the categories of public accommodation enumerated in the statute.[29] Only under the broad interpretation are services such as online video streaming, e-commerce only shopping sites, and massive open online courses (MOOCs) held to ADA standards. These services have millions of users and subscribers, but without adoption of the broad interpretation rule many Disabled people will be forcefully excluded from accessing them.

The broad interpretation of the ADA is a more practicable standard to use as the Web continues to be an increasingly integral part of everyday life. Thirty years ago, when the ADA was enacted, the Web was not a consequential part of American life to necessitate inclusion in ADA standards, but now the Web and use of private website services is an unavoidable part of everyday life for many Americans. During the Coronavirus Pandemic nearly half of the U.S. labor force is working from home, requiring the use of online connectivity sources and Web based access to work materials.[30] Many of the services currently used to facilitate online communication (e.g., Zoom, Microsoft Teams, Facebook Messenger, etc.) are only required to comply with ADA standards under the broad interpretation rule. If services of this sort are not required to be ADA compliant, it limits the connectivity of a significant portion of the population. Online resources are commonly used by Disabled people to remove barriers to communication, knowledge, and interaction that they may face in the real world. If these websites are poorly designed, they can create barriers that exclude people with Disabilities from using them.[31] In work and social capacities, the best way to ensure accessibility compliance is to utilize the broad interpretation rule.

The standard imposed by the broad interpretation may not be effective as a strict all-encompassing rule. While it is best business practice to avoid excluding a notable portion of the market from accessing a company’s online store, it is unreasonable to legally enforce these standards on small mom-and-pop shops. Legally enforcing these standards as tiered requirements based on the number of employees working for a company or annual revenue, would protect small and family owned businesses from potentially costly website design while ensuring that all large corporations have accessible websites regardless of their connection to physical locations. [32] With sixty-one million Disabled adults living in the United States, and more people joining the Disabled community every year, the enforcement of the broad interpretation rule would help most individuals at some point during their lives and ultimately help businesses as well.[33] Web accessibility is not a once-and-done exercise, and no company website will ever obtain perfect accessibility. This is an effort that will extend far beyond the span of one career, and the use of the broad interpretation standard for all large organizations’ websites will promote ongoing efforts towards accessibility for years to come as the Web continues to grow and maintain prominence in every day life. Until further binding guidance can be formed by the federal government for businesses and other organizations, this rule is the best way to continue the Web accessibility journey.


[1] Americans with Disabilities Act Website Compliance, lexis nexis, http:// https://www.lexisnexis.com/ (search “American with Disabilities Act Website Compliance” in search bar; narrow results by selecting “Practice Notes and Articles” from the dropdown menu) (last visited Oct. 26, 2020).

[2] 42 U.S.C.S. § 12181(7) (“The following private entities are considered places of public accommodation . . . (A) an inn, hotel, motel, or other place of lodging; (B) a restaurant, bar, or other establishment serving food or drink; (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (D) an auditorium, convention center, lecture hall, or other place of public gathering; (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, hospital, or other service establishment; (G) a terminal, depot, or other station used for specified public transportation; (H) a museum, library, gallery, or other place of public display or collection; (I) a park, zoo, amusement park, or other place of recreation; (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; (L) gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.”).

[3] See Americans with Disabilities Act Website Compliance, supra note 1 (stating that because the ADA was enacted in 1990, the drafters did not contemplate the internet and thus left it out of guidance under Title III).

[4] See id.; U.S. Dept. of Just., Accessibility of State and Local Government Websites to People with Disabilities (June, 2003), https://www.ada.gov/websites2_scrn.pdf (describing a set of recommendations and standards to guide businesses to voluntary website accessibility, but lacking an enforcement mechanism).

[5] Notice of Withdrawal of Four Previously Announced Rulemaking Actions, 82 Fed. Reg. 60,932 (Dec. 26, 2017).

[6] Id.

[7]  Information and Communication Technology (ICT) Standards and Guidelines, 82 Fed. Reg. 5,790 (Jan. 18, 2017).

[8] See Americans with Disabilities Act Website Compliance, supra note 1; Legal Information Institute, Circuit Split, https://www.law.cornell.edu/wex/circuit_split (last visited Nov. 01, 2020) (defining a split circuit as when two or more courts in the United States court of appeals reach different interpretations of the same federal law allowing for different enforcement in different areas of the country).

[9] See, e.g., Nat’l Assoc. of the Deaf v. Netflix, 869 F. Supp. 2d 196 (D. Mass 2012); Carparts Distrib. Ctr. v. Auto Wholesaler’s Ass’n of New England, 37 F.3d 12 (1st Cir. 1994).

[10] See, e.g., Andrews v. Blick Art Materials, 268 F. Supp. 3d 381 (E.D.N.Y. 2017); Nat’l Fed’n of the Blind v. Scribd Inc., No. 2:14-cv-162, 2015 U.S. Dist. LEXIS 69440 (D. Vt. May 29, 2015).

[11] See, e.g., Doe v. Mut. Of Omaha ins. Co., 179 F.3d 557 (7th Cir. 1999); Access Living of Metropolitan Chicago v. Uber Technologies Inc., 351 F. Supp. 3d 1141 (N.D. Ill. 2018); Morgan v. Joint Admin. Board of Pillsbury, 268 F.3d 465 (7th Cir. 2001).

[12] See 42 U.S.C.S. § 12181(7), supra note 2.

[13] See, e.g., Ford v. Schering-Plough, 145 F.3d 601 (3d Cir. 1998); Peoples v. Discover Fin. Servs., Inc., 387 Fed. Appx. 179 (3d Cir. 2010).

[14] See, e.g., Brintley v. Aeroquip Credit Union, 936 F.3d 489 (6th Cir. 2019).

[15]See, e.g., Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000).

[16] See, e.g., Haynes v. Dunkin’ Donuts LLC, 741 Fed. Appx. 752 (11th Cir. 2018); Gil v. Winn-Dixie Stores, Inc. 257 F. Supp. 3d 1340 (S.D. FL. 2017).

[17] See, Americans with Disabilities Act Website Compliance, supra note 1.

[18] See Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d at 1348-49.

[19] See, e.g., Cullen v. Netflix, Inc., 880 F. Supp 29 1017, 1023 (N.D. Cal. 2012).

[20] See 42 U.S.C.S. § 12181(7), supra note2; Nat’l Assoc. of the Deaf v. Netflix, 869 F. Supp. 2d at 200-01 (explaining that the Plaintiffs convincingly pled that the Watch Instantly function falls into the scope of the ADA because the function is within one of four categories listed in the statute: “places of exhibition and entertainment,” “places of recreation.” “sales or rental establishment,” and “services establishment.”).

[21] Nat’l Assoc. of the Deaf v. Netflix, 869 F. Supp. 2d at 201-02.

[22] HHS Issues New Report Highlighting Dramatic Trends in Medicare Beneficiary Telehealth Utilization amid COVID-19, HHS (July 28, 2020), https://www.hhs.gov/about/news/2020/07/28/hhs-issues-new-report-highlighting-dramatic-trends-in-medicare-beneficiary-telehealth-utilization-amid-covid-19.html#:~:text=The%20report%20finds%20telehealth%20adoption,January%20through%20early%20June%202020. (“in April, nearly half (43.5%) of Medicare primary care visits were provided through telehealth compared with less than one percent (0.1%) in February”).

[23] Jessica Young, US ecommerce sales soar a record 44.4% in Q2 as pandemic sends shoppers online, Digital Commerce 360 (Aug. 18, 2020), https://www.digitalcommerce360.com/article/quarterly-online-sales/ (finding that in Q2 2020 there was a 44.4% increase in e-commerce spending as compared to Q2 2019, thus breaking the record for any Q2 year-over-year growth previously noted).

[24]See Rishi Iyengar, Zoom’s revenue soars 169% as people flock to service during pandemic, CNN Business (June 2, 2020, 6:42 PM ET) https://www.cnn.com/2020/06/02/tech/zoom-earnings-coronavirus/index.html (reporting that Zoom saw a 354% year-over-year increase in subscribers with over 10 individual users on the plan during Q1 FY2021); Dhawal Shah, MOOCWatch 23: Pandemic Brings MOOCs Back in the Spotlight, The Report (May 3, 2020), https://www.classcentral.com/report/moocwatch-23-moocs-back-in-the-spotlight/ (stating that Corsera, a wholly online open-class learning tool, saw a 644% year-over-year increase in course enrollments from April 2019 to April 2020).

[25] See Ella Koeze and Nathaniel Popper, The Virus Changed the Way We Internet, The New York Times (April 7, 2020), https://www.nytimes.com/interactive/2020/04/07/technology/coronavirus-internet-use.html (demonstrating that popular remote work applications such as Zoom, Google Classroom, Microsoft Teams, and Hangouts Meet by Google all increased in daily app sessions by double or more during the month following the first U.S. Covid-19 death in February 2020).

[26] Id. (showing that over the first month after the first U.S. Covid-19 death, Facebook.com visits increased by 27%).

[27] Shir Ekerling, We Analyzed 10,000,000 Pages and Here’s Where Most Fail with ADA and WCAG 2.1 Compliance, accessiBe Web Accessibility Knowledgebase (Nov. 3, 2019), https://accessibe.com/blog/knowledgebase/we-analyzed-10000000-pages-and-heres-where-most-fail-with-ada-and-wcag-21-compliance (demonstrating a variety of failures and deeper analysis into the lack of accessibility compliance with WCAG 2.1 AA, one of the most commonly used accessibility standards, for 10,000,000 web pages: 98% failed regarding menus, 52% failed regarding images, 89% failed regarding pop-ups, 83% failed regarding buttons, and 95% failed regarding other miscellaneous infractions).

[28] See, e.g., Kim Phillips & Debra Ruh, Accessibility in Social Media, Level access, https://www.levelaccess.com/accessible-social-media/ (last visited Oct. 26, 2020) (stating that only 54.2% of screen readers indicated that social media sites are “very accessible” or “somewhat accessible”).

[29] See 42 U.S.C.S. § 12181(7), supra note 2; Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d at 200-01 (holding that Netflix falls into some categories of public accommodation so, although they do not have a physical place of business, they are required to be accessible).

[30] May Wong, Stanford research provides a snapshot of a new working-from-home economy, Stanford News (June 29, 2020),https://news.stanford.edu/2020/06/29/snapshot-new-working-home-economy/(“an incredible 42 percent of the U.S. labor force now working from home full-time. . . . And the remaining 26 percent – mostly essential service workers – are working on their business premises. So, by sheer numbers, the U.S. is a working-from-home economy. Almost twice as many employees are working from home as at work.”).

[31] See WAI, Introduction to Web Accessibility, W3C https://www.w3.org/WAI/fundamentals/accessibility-intro/ (last visited Oct. 26, 2020).

[32] This type of enforcement has been used in other parts of the ADA to protect smaller businesses from the burden of higher standards while ensuring larger businesses are held responsible because they have a greater ability. (See, e.g., EEOC, Fact Sheet: Disability Discrimination, (Jan. 15, 1997), https://www.eeoc.gov/laws/guidance/fact-sheet-disability-discrimination (explaining that ADA Title I only applies to employers with more than 15 employees, thus allowing smaller businesses to not comply with ADA standards that may be limiting to their growth)).

[33] See CDC, Disability Impacts All of Us (Sept. 16, 2020), https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html (stating that 61 million adults in the United States live with a disability);Kris Rivenburgh & Emily Ogle, Emily Ogle Advocates for People with Disabilities and Accessibility as Coronavirus Turns Life Digital, Accessible.org Podcast, at 16:10-16:20 (Mar. 28, 2020) accessible.org/ep11 (“everyone ages into disability. And so investing in accessibility is investing in our futures.”); Ralph Tkatchuk, 5 reasons why accessible ecommerce site design is crucial during COVID-19 lockdowns, Digital Commerce 360 (May 5, 2020), https://www.digitalcommerce360.com/2020/05/05/5-reasons-why-accessible-ecommerce-site-design-is-crucial-during-covid-19-lockdowns/ (“approximately one in four adults in the United States, or 61 million people who spend over $200 billion each year. During the current [COVID-19] pandemic, a far larger share of this $200 billion is being spent via ecommerce channels.”).