Trial News

A grocery store chain website’s incompatibility with screen reader software used by visually impaired customers does not violate Title III of the Americans with Disabilities Act (ADA), the Eleventh Circuit held, reversing a Florida district court’s ruling. In a 2-1 decision, the court parted ways with other circuits that have considered the issue, finding that websites do not constitute places of “public accommodation” under the ADA, regardless of their nexus to physical locations. (Gil v. Winn-Dixie Stores, Inc., 2021 WL 1289906 (11th Cir. Apr. 7, 2021).)

Juan Carlos Gil, who is legally blind, sued Winn-Dixie for injunctive relief after he discovered that the store’s website—which allows consumers to fill and refill prescriptions, locate stores, access coupons, and learn about product recalls—could not integrate with his screen reader software. Gil alleged the website also failed to provide any alternate means of access for visually impaired consumers. He based his claim on Title III of the ADA, which prohibits “any place of public accommodation” from discriminating “on the basis of disability.” Public accommodations under the act include 12 categories of private entities, including grocery stores, and are further defined under 28 C.F.R. §36.104 as facilities that comprise “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.”

Winn-Dixie acknowledged that its physical stores are places of public accommodation under the ADA but argued that its website does not fall within that definition. Gil countered that because the store’s website allows customers to fill and refill prescriptions for in-store pickup and delivery and because the website has a “nexus” to the physical stores, it is a place of public accommodation.

The Florida federal district court considered Gil’s claim in 2017 and acknowledged that circuits are split on whether the ADA’s protections for public accommodations are limited to physical locations. The district court noted that the First, Second, and Seventh Circuits had found that the ADA applies to websites “independent of any connection between the website and a physical place,” while the Third, Sixth, and Ninth Circuits required that “goods and services provided by a public accommodation . . . have a sufficient nexus to a physical place in order to be covered by the ADA.” The court concluded in a bench trial that because Winn-Dixie’s website is inaccessible to visually impaired users and “heavily integrated” with its physical stores, Winn-Dixie was in violation of the ADA. The court ordered the defendant to, among other things, update its website to ensure accessibility for people with disabilities, adopt and implement a web accessibility policy, and conduct automated accessibility tests at least every three months.

The Eleventh Circuit reversed, offering a novel interpretation of ADA requirements for the websites of places of public accommodation. The court found that the ADA’s statutory language clearly and unambiguously defines public accommodations as “physical, tangible spaces”—which a website is not. The court then considered Gil’s claim that Eleventh Circuit precedent on the ADA prohibits not just physical barriers but also “intangible” ones. Gil cited the court’s decision in Rendon v. Valleycrest Productions, Ltd., where it held that a game show production company’s automated hotline was discriminatory because it prevented people who were hearing impaired and mobility impaired from being contestants. (294 F.3d 1279 (11th Cir. 2002).) The court distinguished Gil’s case, noting that the Rendon plaintiffs, through the intangible barrier of the game show’s hotline, had no way to compete for the privilege of being a contestant. Conversely, Winn-Dixie’s inaccessible website does not prevent Gil from shopping in the physical store or using paper coupons, so it does not rise to the level of an intangible barrier.

The dissent argued that the majority misconstrued the requirements of the ADA: It broadly guarantees freedom from discrimination and prohibits people with disabilities from being “treated differently.” The dissent pointed out that Winn-Dixie customers who are not visually impaired can use the store’s website to request prescription refills and access digital coupons, so the failure to provide this benefit to those with visual impairments violates the ADA.

Joshua Entin of Ft. Lauderdale, Fla., who represents Gil, said that “the Eleventh Circuit’s decision that websites are not covered by the ADA conflicts with other federal appellate courts around the country. This is a disappointing but temporary loss for the civil rights of people with disabilities. We have filed a petition for rehearing en banc and, if necessary, will likely seek U.S. Supreme Court review of this decision.”

“The decision is way off-base and ignores established law of the Eleventh Circuit,” said David Ferleger of Jenkintown, Pa., who also represents Gil. “It doesn’t cost much to make a website accessible,” he added, “but this decision essentially makes the internet off-limits to the blind. This is especially horrible after we have learned during the pandemic how essential the internet is to our daily lives.”