Eleventh Circuit Overturns Landmark Accessibility Decision in Winn-Dixie, Determines Certain Websites Are Not “Public Accommodations” Covered by Title III of the ADA
By Michelle M. McGeogh, Lori J. Sommerfield & Christopher T. Cognato on April 27, 2021
POSTED IN LITIGATION AND COURT DECISIONSOn April 7, 2021, the Eleventh Circuit Court of Appeals ruled that Winn-Dixie Stores’ websites are not “public accommodations” and therefore are not subject to the accessibility requirements of Title III of the Americans with Disabilities Act (“ADA”). The decision reversed a 2017 federal district court opinion – in what may be the only website accessibility case to ever go to trial – that required the grocery store chain to make its website accessible to individuals with visual disabilities. The case now appears headed to the U.S. Supreme Court to resolve a long-standing circuit split.
Title III of the ADA prohibits discrimination against individuals with disabilities by private entities and requires that “places of public accommodation” provide individuals with disabilities with full and equal access to their goods, services, facilities, privileges and advantages. The statute defines places of public accommodation to include certain brick-and-mortar businesses, including grocery stores. Although Title III of the ADA does not reference websites, the U.S. Department of Justice (“DOJ”), which is responsible for administering the ADA, has interpreted Title III since 1996 to require websites to be made accessible to individuals with disabilities. To date, however, the DOJ has not issued a uniform technical standard for accessibility, despite attempts to do so through two putative rulemakings during the period 2010-2016.
At the trial court level, the plaintiff, Juan Carlos Gil, alleged that the Winn-Dixie website was inaccessible to him and other blind individuals. At the time he filed the complaint in 2016, the grocery store’s website did not sell goods. Instead, it contained information and features such as digital coupons, a store locator tool, and the ability to refill existing pharmacy prescriptions online. The plaintiff alleged that the inaccessibility of the website prevented him from accessing and enjoying these features. Notably, for years he had used Winn-Dixie as his primary pharmacy by obtaining the assistance of store employees who could help locate what he needed. Once he learned of the website, however, he wished to use it instead. He alleged that, because the site was not compatible with screen-reader software he used to access the internet, he was unable to do so and, therefore, the resulting barrier to Winn-Dixie’s services violated the ADA. Before the district court, he argued both that the website itself was an entity covered by Title III and, alternatively, that it had a direct nexus with the brick-and-mortar store sufficient to fall within the statute’s ambit.
The district court agreed. It reasoned that Winn-Dixie’s sites were “heavily integrated” with its physical stores, and therefore covered by Title III of the ADA, despite the fact that the grocery chain did not sell its products online. As a result, it held that the plaintiff was denied the full and equal enjoyment of Winn Dixie’s goods and services and ordered Winn-Dixie to remediate its website to comply with the voluntary, international Web Content Accessibility Guidelines 2.0 (known as the “WCAG 2.0”). The decision opened the door to a flood of lawsuits against businesses alleging inaccessibility of their websites.
The Eleventh Circuit’s reversal of that decision has the potential to stem the tide. According to the appeals court, analysis under Title III of the ADA is “straightforward,” owing to the clear and specific language of the statute and DOJ regulations. Because websites are not among the twelve categories of entities listed in Title III, they cannot, on their own, be considered public accommodations. The Eleventh Circuit also disagreed that inaccessible websites may be barriers to the services of associated entities listed in the statute. In an earlier case, the court had reasoned that a contest conducted over the telephone, without any arrangement for those with auditory or mobile disabilities, violated the ADA. Here, by contrast, Gil was not entirely prevented from accessing Winn-Dixie’s points of sale; in fact, he had accessed them for years without using the grocery chain’s website.
This caveat is an important point for the reach of the Eleventh Circuit’s decision and likely to be relevant to future cases. Even if the Winn-Dixie website is not a place of public accommodation under Title III of the ADA, other intangible barriers, including web-based barriers, which prevent an individual with disabilities from enjoying goods and services provided by a store or another place of accommodation may still violate the ADA. Thus, the court emphasized the “limited functionality” of the site, which did not prevent full and equal access to “the goods, services, facilities, privileges, advantages, or accommodations of” a Winn-Dixie store.
Although it only applies to cases arising in Alabama, Florida, and Georgia, the Eleventh Circuit’s reversal of the Winn-Dixie case furthers a split among the federal courts of appeal. While it is consistent with website accessibility cases decided by the Third, Sixth, and Ninth Circuits, the First and Seventh Circuits, by contrast, have found that Title III of the ADA is not limited to physical locations.
Plaintiff Gil’s attorneys have publicly vowed to fight on and have already requested a rehearing en banc. Should that route prove unsuccessful, Gil’s attorneys are expected to file a petition for certiorari with the U.S. Supreme Court.
Unless and until the U.S. Supreme Court resolves the circuit split, plaintiffs’ attorneys will continue to file these types of lawsuits against businesses. In addition, we expect to see renewed interest from the DOJ in enforcing Title III of the ADA under the Biden administration, so regulatory risk will likely increase over the next four years. Therefore, businesses that wish to mitigate both litigation and regulatory risk should make their websites and mobile applications fully accessible to individuals with disabilities.
Website and mobile application accessibility is likely to remain a highly evolving area of the law. As we previously reported, federal legislative efforts to provide clarity in this area of the law and a potential safe harbor from liability for businesses continue, including the recent reintroduction of the Online Accessibility Act (H.R. 1100).
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