“Winn’s of Change?” The Eleventh Circuit in Gil v. Winn-Dixie Stores, Inc. Holds That Websites Are Not Places of Public Accommodation Under the ADA

The landscape of ADA website accessibility claims, which have inundated courts throughout the country for years, may be changing with the issuance, on April 7, 2021, of a long-awaited decision by the Court of Appeals for the Eleventh Circuit in Gil v. Winn-Dixie Stores, Inc. In a decision that marks only the second time a Federal Circuit Court of Appeals has addressed the parameters of website accessibility claims based on the Americans With Disabilities Act (ADA), a majority of the panel held that websites are not “places of public accomodation” under Title III of the ADA and thus, the plaintiff’s inability to access certain services provided by Winn-Dixie’s website is not a violation of Title III. While this decision runs counter to many District Court decisions, as well as the Ninth Circuit’s decision in Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), the Eleventh Circuit was clear – absent congressional action, the court cannot broaden the definition of “places of public accommodation” beyond the physical places of business enumerated in Title III. Thus, the court reversed the district court, which had found, following the only full trial to occur in these matters, that Winn-Dixie violated the ADA by offering a website that fails to meet the accessibility standards that have been accepted by courts throughout the country.

Gil, who is legally blind, filed suit against Winn-Dixie, a grocery store chain. Gil alleged that he was unable to fully access and take advantage of the offerings of Winn-Dixie’s website using “screen reader” software, primarily with respect to an online coupon program, pharmacy services, and a store locator feature. The ADA provides that discrimination occurs when an operator of “a place of public accommodation … fail[s] 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 than other individuals because of the absence of auxiliary aids and services.” 42 U.S. Code § 12182(b)(2)(A)(iii). Gil argued that, based on his inability to use these website services, Winn-Dixie violated the ADA because (1) the website itself was “a place of public accommodation under the ADA” and thus must be accessible; and (2) even if the website itself was not a place of public accomodation, its inaccessibility constituted an “intangible barrier” to the full and equal enjoyment of Winn-Dixie’s physical store locations. The latter argument relates to the so called “nexus” theory of liability – adopted by the Ninth Circuit in Robles and other District Courts – which holds that if the website has a nexus to the company’s physical store locations and can adversely affect the user’s ability to enjoy the benefits of those locations, it must meet the ADA’s accessibility standards. Winn-Dixie argued that its website could not be “a place of public accomodation” under the ADA because it was not a physical location and that the nexus standard was an inappropriate gloss on the ADA’s requirements. The court agreed.

With respect to the “place of public accomodation” issue, the court’s analysis started with the plain text of the ADA. Under Title III, “[n]o 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.” The court then listed the expansive list of physical locations enumerated in the statute as places of “public accommodations” and noted that the list “covers most physical locations in which individuals will find themselves in their daily lives” but “[n]otably … does not include websites.” The court concluded that the statutory language in Title III defining “public accommodation” was clear and unambiguous in its reference to tangible, physical places only, and saw no reason to deviate from the plain language of the statute in its interpretation. Accordingly, it held that websites are not a place of public accommodation under Title III of the ADA, and Gil’s inability to use certain features of the website could not violate Title III.

Next, the court addressed Gil’s argument that even if a website is not itself a place of public accommodation, its inaccessibility to visually impaired individuals nevertheless violated the ADA because it constituted an “intangible barrier” to enjoying Winn-Dixie’s physical stores. Gil relied on Rendon v. Valleycrest Productions, Ltd., in which the Eleventh Circuit held that both tangible and intangible barriers are covered within the meaning of Title III. In Rendon, plaintiffs who wanted to be contestants in a game show could not participate in the contestant selection process because it could be undertaken only through a phone system that was inaccessible to the plaintiffs due to their disabilities. The court distinguished Rendon on the basis that the Winn-Dixie website was not the sole means by which the disabled user could access the services at issue. In fact, the court explained that the Winn-Dixie website was of limited use, as it did not allow for online purchases, which could be made only in physical store locations, and provided conveniences that could be achieved on some level at the store location where Gil had frequently shopped in the past. The court took pains to stress that the ADA does not require that disabled consumers be afforded an experience identical to that of sighted consumers, noting that “any convenience or time saving benefits afforded through the website might make the provision of ‘auxiliary aids and services’ reasonable but is not dispositive of whether such ‘auxiliary aids and services’ are in fact 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.”

In a final note, the court addressed the Ninth Circuit holding in Robles. That court had embraced the “nexus” standard between Domino’s website and app and Domino’s physical restaurants, and it found that the plaintiff had stated a claim under Title III of the ADA. The majority distinguished Robles, finding that, contrary to Domino’s website and app, Winn-Dixie made no sales through its website. The court expressly declined to adopt the “nexus” standard, finding no support for it in the statute or Eleventh Circuit decisional law.

Significantly, Judge Jill Pryor on the Eleventh Circuit panel issued a vigorous dissent, arguing that the majority had misinterpreted the scope and intent of the ADA’s requirements. Picking up on the statute’s “otherwise treated differently” language, the dissent noted that it cannot be fairly argued that the inability to use the coupon and pharmacy services of the website did not result in such prohibited disparate treatment. As the dissent explained:

[The majority’s] argument is doubly flawed. Its premise – that, for ADA purposes, the relevant services, privileges, and advantages offered by Winn-Dixie were limited to “filling prescriptions and using coupons” – is wrong. And even if that premise were correct, the majority opinion’s conclusion does not follow from it. For even if the majority is correct that the relevant services, privileges, or advantages were “filling prescriptions and using coupons,” Gil was not “able to enjoy fully and equally [those] services,” because he could enjoy only different – and markedly inferior – versions of them.

Judge Pryor concluded, “As I read it, the majority opinion gives stores and restaurants license to provide websites and apps that are inaccessible to visually-impaired customers so long as those customers can access an inferior version of these public accommodations’ offerings. That result cannot be squared with the ADA.”

While the Winn-Dixie decision offers some much-needed respite for a business community that has been deluged with ADA website accessibility claims in recent years, its practical benefits ultimately may be enjoyed only in jurisdictions covered by the Eleventh Circuit, including Florida, which has been a hotbed of this litigation. Defendants in other active jurisdictions – including those covered by the Ninth and Second Circuits (primarily California and New York) – will likely not see much change in how those courts interpret these claims. Indeed, when dealing with companies that have a national footprint and thus may be subject to the claims in multiple jurisdictions, plaintiffs will likely focus their claim activity going forward in the Second and Ninth Circuit Courts or in plaintiff-friendly state courts, such as those in California. Ultimately, the greatest significance of the Winn-Dixie decision may lie in its potential to finally thrust this issue into the United States Supreme Court on Gil’s anticipated petition for certiorari in the near future. Because Winn-Dixie sets up a split on several important issues between the two circuit courts that have addressed these claims, and it presents a compelling dissenting opinion, there is an increased chance that the Supreme Court will decide to do what it declined to do in the Robles matter, and take the case for review.

We will be reporting on any developments in this area as they occur.

You may also like...