Gil v. Winn-Dixie was the first "website accessibility" case to go to trial. The 2017 decision—which opened the floodgates for similar lawsuits—held that Winn-Dixie's website violated Title III of the Americans with Disabilities Act ("ADA") because it was not accessible to blind and visually-impaired customers. In a landmark ruling, the Eleventh Circuit reversed the trial court's decision, holding that the inaccessibility of Winn-Dixie's website did not violate the ADA because the plaintiff was still able to access "the goods, services, privileges, or advantages of Winn-Dixie's physical stores."
This decision highlights an issue that courts have been struggling with for years. Title III of the ADA requires that disabled people be provided "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. § 12182(a) (emphasis added). But are websites "places of public accommodation"? In defining "places of public accommodation", the ADA lists twelve types of locations, all of which are physical, tangible places—e.g., parks, museums, and restaurants. Because no "intangible places or spaces, such as websites, are listed", the Eleventh Circuit concluded that websites—in and of themselves—are not places of public accommodation. Notably, this holding conflicts with rulings from the First and Seventh Circuits, which have held that the phrase "public accommodation" is not limited to actual physical places.
This was not the end of the Eleventh Circuit's analysis because the ADA also forbids "intangible barriers" that prevent disabled people from fully and equally enjoying the goods, services, privileges, or advantages of a place of public accommodation. The plaintiff argued that the inaccessibility of Winn-Dixie's website served as "an intangible barrier to his equal access to the services, privileges, and advantages of Winn-Dixie's physical stores", which are places of public accommodation. The trial court agreed with plaintiff, finding that Winn-Dixie's website was so "heavily integrated" with Winn-Dixie's stores that it operated as a "gateway" to the physical stores.
The Eleventh Circuit reversed the trial court's decision. First, it rejected the so-called "nexus" standard (adopted by the Sixth and Ninth Circuits), which requires websites to comply with the ADA if they have a "nexus" to a physical location. Instead, the Eleventh Circuit focused on whether the inaccessibility of Winn-Dixie's website prevented plaintiff from accessing the services of Winn-Dixie's physical stores. Crucial to the court's ruling was the fact that Winn-Dixie's website "is not a point of sale; all purchases must occur at the store." The website has only limited functionality—customers can re-fill existing prescriptions for in-store pickup, and link digital coupons to their Winn-Dixie rewards card so that the coupons are applied automatically upon check out at a physical store. Nothing prevented plaintiff from refilling prescriptions or using paper coupons at a physical store—indeed, plaintiff had done so for many years. Thus, the Eleventh Circuit concluded that Winn-Dixie's "limited use website" did not violate the ADA.
The Eleventh Circuit's decision, however, was not unanimous. The dissenting judge lamented that the decision "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." The ADA does not require "identical experiences" for disabled customers. However, the dissenting judge found that Winn-Dixie treated plaintiff "as a second-class customer"—his "enjoyment of Winn-Dixie's in-store prescription and coupon services was not full and equal but partial and lesser." For example, in order to refill a prescription, plaintiff had to go to a store, wait in line to speak to a pharmacist and verbally request medication by name in a public setting where other customers might overhear, and then wait 20-30 minutes for the prescription to be filled. By contrast, Winn-Dixie's sighted customers could privately request a prescription refill through Winn-Dixie's website and pick up the filled prescription upon arrival.
What does the Eleventh Circuit's ruling mean for website accessibility lawsuits going forward? There is more confusion and uncertainty concerning digital accessibility under the ADA. The Supreme Court recently denied review of the Ninth Circuit's decision in Robles v. Domino's Pizza, which held that the ADA covers websites with a nexus to a physical place of public accommodation. The Eleventh Circuit's Winn-Dixie decision has deepened the Circuit split on this issue and it may be time for the Supreme Court to weigh in—especially given the sheer number of website accessibility lawsuits. In the interim, businesses need to continue to audit their websites and apps to ensure compliance with the WCAG guidelines.
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