Because of Winn-Dixie: What Does the Eleventh Circuit's Ruling Mean for Website Accessibility Claims?
Posted: April 13, 2021
In a long-awaited decision, the U.S. Court of Appeals for the Eleventh Circuit reversed a trial court ruling and held that Winn-Dixie had not discriminated against a visually impaired customer who alleged that Winn-Dixie's website was not accessible to him.
Update: On April 15, 2021, the plaintiff filed a petition asking the entire Eleventh Circuit to rehear the case and overturn the decision of the three-judge panel.
The appellate court reasoned that he had not shown that it was necessary for Winn-Dixie's website to be accessible for him in order to access the goods and services Winn-Dixie offers in its physical store. With the Eleventh Circuit's ruling in Gil v. Winn-Dixie (case), there is a widening split in the way the federal courts of appeals analyze website accessibility claims brought against companies under Title III of the Americans with Disabilities Act (ADA). This ruling may serve as a basis for review by the U.S. Supreme Court.
The Trial Court Decision
In this case, a visually impaired plaintiff sued Winn-Dixie, alleging that the grocery store operator violated the public accommodation provisions in Title III of the ADA by having a website that was inaccessible to blind persons who rely on a screen reader to navigate a website. Even though customers cannot purchase anything on Winn-Dixie's website, they can refill their prescriptions and download digital coupons for their in-store purchases. After a bench trial, the trial court ruled that Winn-Dixie violated the ADA because the lack of website accessibility had denied the plaintiff full and equal enjoyment of the services available on the website.
The Eleventh Circuit Overturns the Trial Court
On appeal, the Eleventh Circuit reversed the trial court. First, after recognizing a 3-2 split of authority among the courts of appeals on the issue of whether owners and operators of websites may be directly liable based upon the characterization of websites as places of public accommodation covered by Title III of the ADA, the Eleventh Circuit joined the Third, Sixth, and Ninth Circuits and ruled that based on "the plain language of Title III of the ADA, public accommodations are limited to actual, physical places," and "websites are not a place of public accommodation under Title III of the ADA."
The court then addressed the argument that a plaintiff still could bring a claim against an actual physical place of public accommodation that discriminates against individuals based on a disability in providing goods, services, privileges and advantages if it imposes either "tangible" and "intangible barriers." The Eleventh Circuit acknowledged that the plaintiff could claim a violation of the ADA if he could show that the insufficiently accessible website imposed an "intangible barrier" to accessing the goods, services, privileges, or advantages of Winn-Dixie's physical stores. The court then held that he failed to do so.
The court observed that the Winn-Dixie website had very limited functionality; it only could be used to order refills on prescriptions and to download coupons. All purchases, including purchases of prescriptions and purchases involving coupons, had to be made at the store, and there was nothing that served as a barrier to the plaintiff going to the store to reorder his prescriptions or redeem coupons. The court noted that the plaintiff had patronized the store in the past despite the fact the website was not accessible to him. His conduct showed that the inaccessible website was not barrier to him enjoying fully and equally the goods, services, privileges and advantages of the store.
The court distinguished the alleged "intangible barrier" created by the website in Winn-Dixie from the intangible barrier involved in its prior decision in Rendon v. Valleycrest Productions. In Rendon, the Eleventh Circuit held that producers of the Who Wants to Be a Millionaire game show violated the ADA because the only way people could compete for the privilege of being a contestant on the show was to use a phone system, which was inaccessible by individuals with certain disabilities. As a result, the phone system created an "intangible barrier" that prevented the plaintiffs from accessing a physical place of public accommodation. Here, Winn-Dixie's website was not the exclusive point of access for any goods or services Winn-Dixie offered.
The Eleventh Circuit also distinguished this case from Robles v. Domino's Pizza, LLC, a case in which the Ninth Circuit held that the plaintiff successfully stated a claim against the pizza-delivery company under the ADA. In that case, the plaintiff claimed he could not order pizza on Domino's website and mobile app because they were not sufficiently accessible to blind individuals. The Eleventh Circuit noted that the facts of Robles are materially different from the facts in the Winn-Dixie case — because Domino's made sales via its website, but Winn-Dixie does not.
Significantly, the court rejected the Ninth Circuit's position that a website with some "nexus" to a physical place of public accommodation is necessarily covered by Title III of the ADA. The Eleventh Circuit stated that it "decline[d] to adopt a 'nexus' standard" because there is "no basis for it in the statute or in our precedent." The court further declared that it did not "find Robles persuasive, either factually or legally." Some trial courts within the Eleventh Circuit have interpreted the earlier decision in Rendon as applying a nexus test like Robles, but the Eleventh Circuit in Winn-Dixie clarified that Rendon did not establish such a test.
Finally, the court rejected the argument that, by having to go to the store to order a prescription refill, the plaintiff was denied an "advantage" offered to customers who do not have a disability. It reasoned that that Title III does not require places of public accommodation to provide identical experiences to individuals with disabilities; it requires them to provide meaningful access to a comparable experience. Here, the court observed that all customers without internet service were treated the same as the plaintiff. In reaching this conclusion, the Eleventh Circuit ruled that the plaintiff failed to show it was necessary for the Winn-Dixie website to work effectively with a screen reader for the plaintiff to have equal access to the goods, services, privileges and advantages offered in Winn-Dixie's stores.
What Does this Ruling Mean for Website Accessibility Litigation?
Many companies and practitioners hoped that the Eleventh Circuit's ruling in Winn-Dixie would reject the interpretation of Title III offered by the Ninth Circuit and other courts of appeals and would categorically reject the argument that Title III of the ADA applies to websites. While the ruling creates an implicit split, the Eleventh Circuit's ruling is much narrower than many companies besieged by similar website accessibility claims would have hoped. By highlighting the limited functionality of the Winn-Dixie website, the court left the door ajar for claims against companies with physical stores that also sell products on their websites. The court clarified, however, that for someone to succeed in bringing such a claim, the person will need to show not only (1) that they were denied access to the goods, services, privileges and advantages of a physical place of public accommodation, but also (2) that it is necessary for a website a company operates to be accessible in order for individuals with a disability not to be excluded, denied the goods, services, privileges, and advantages of a physical place of public accommodation.
With more individuals sheltered at home over the past year, the pandemic may have slowed the tide of certain physical access claims under Title III of the ADA. Website claims, however, continued to proliferate. Given the differing ways the courts are interpreting these website claims, companies will want to continue monitoring these cases. Along with the private plaintiffs' bar, the Justice Department under the new Administration is likely to approach all types of disability access cases with renewed vigor. As such, companies also may want to evaluate the accessibility of their websites and take steps to ensure that they offer multiple alternative means for customers and potential customers to enjoy access to their goods and services.
Posted In: Americans with Disabilities Act (ADA)
Want to know more? Read the full article by Lindsay Alter and Mark T. Phillis at Littler Mendelson