ADA Circuit Split on Website Accessibility in Full Bloom as Eleventh Circuit Holds that Websites Are Not Places of Public AccommodationApril 26, 2021 – Article
Earlier this month, the Eleventh Circuit issued its long-awaited ruling in Gil v. Winn-Dixie Stores, holding that websites are not covered as places of public accommodation under Title III of the Americans with Disabilities Act (“Title III” or the “ADA”).[i] Title III requires that a “public accommodation” such as a grocery store must provide visually impaired customers access to its “goods, services, facilities, privileges, advantages, or accommodations.” Notably, the Eleventh Circuit’s decision reversed and vacated a lower-court decision that had been considered to be a major win for plaintiffs.
The Plaintiff’s District Court Victory
In 2016, Juan Carlos Gil, who is blind, brought a cause of action against grocery chain Winn-Dixie in which he alleged that Winn-Dixie violated the ADA because he could not access Winn-Dixie’s website using screen-reader software. Specifically, Gil alleged that he could not order prescriptions for pickup from the store’s pharmacy via the website.
In 2017, Gil was the first website accessibility case to go to trial. After a bench trial, United States District Judge Robert Scola, sitting in the Southern District of Florida, held that Winn-Dixie’s website discriminated against visually impaired users under Title III of the ADA.[ii]
Despite Winn-Dixie’s argument that Title III’s requirements only apply to physical locations like brick and mortar stores, Judge Scola held that “[w]here a website is heavily integrated with physical stores locations and operates as a gateway to the physical store locations, courts have found that the website is a service of a public accommodations and is covered by the ADA.”[iii] In other words, according to Judge Scola, while a website is not a physical location, a customer who cannot use the website does not have full access to the store’s services, privileges, and advantages. In this case, that meant that the plaintiff did not have the privilege to order a prescription ahead of time.
The Eleventh Circuit’s Reversal
Winn-Dixie appealed the decision to the Eleventh Circuit Court of Appeals. Once there, the lower court decision was reversed. The majority ruling focused heavily on the fact that the ADA only applies to physical spaces and therefore does not apply to websites, particularly in this instance, where use of the website was not the only way for the plaintiff to fill his prescription: “[a]lthough [plaintiff] was not always happy with the speed or privacy of the service he received at the pharmacy, nothing prevented [him] from refilling his prescriptions[.]”[iv]
In so ruling, the two-judge majority employed a strict textualist approach, finding firmly that the ADA applies only to “physical locations in which individuals will find themselves in their daily lives” rather than intangible spaces, like websites.[v]
Have We Heard the Last of Website Accessibility Cases?
At this juncture, that seems unlikely. First and foremost, it is unclear how the Eleventh Circuit’s decision will impact pending and future litigation within its own circuit. The court stressed that Winn-Dixie’s website was “limited use” because it did not impact the use of the grocery store itself, which may not be the case for other websites. In addition, the court noted that “[m]ost importantly, [the website] is not a point of sale; all purchases must occur at the store.”[vi] This suggests that the court could reach a different conclusion in a case involving a website offering online sales. The district courts within the Eleventh Circuit will now be tasked with applying this decision to websites that are not “limited use” and instead offer direct sales to customers.
Second, since many businesses and certainly their websites typically reach into multiple jurisdictions, the Eleventh Circuit’s decision in Gil will not bring immediate relief in any other circuit. Instead, the Gil decision just deepens an already blooming circuit split on this issue. While the Third and Sixth Circuits have similarly ruled that “places of public accommodation” must be physical spaces under the ADA, the First and Seventh Circuits have conversely held that the ADA’s definition of a public accommodation can extend to virtual or digital spaces. And more recently, in 2019 the Ninth Circuit decided another landmark case in which it held that Domino’s online ordering system violated the ADA because it was not accessible to visually impaired customers.[vii]
The Gil decision now sets out yet another standard for liability for website accessibility cases. Since the only other way to clarify the applicability of Title III to websites is through action by Congress or the Department of Justice, the competing standards will now likely be used to persuade the Supreme Court to accept a website accessibility case on appeal, hopefully settling the debate once and for all.
Author: Edward P. Abbot (Partner-in-Charge, New York)
[i] No. 17-13475 (11th Cir. 2021).
[ii] 2017 U.S. Dist. LEXIS 90204, No. 16-cv-23020 (S.D. Fla., Jun. 13, 2017).
[iv] No. 17-13475 (11th Cir. 2021).
[vi] Id. (emphasis supplied).
[vii] Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019).