November 29, 2021

Volume XI, Number 333

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The Eleventh Circuit Court of Appeals Issues Its Highly-Anticipated Decision on Website Accessibility

On April 7, 2021, a split panel of the U.S. Court of Appeals for the Eleventh Circuit (the “11th Circuit”) issued its highly-anticipated decision in Gil v. Winn-Dixie Stores, reversing a 2017 judgment against Winn-Dixie that found that the grocery chain’s website violated Title III of the Americans with Disabilities Act (“ADA”).  The 11th Circuit reversed and remanded the case for further proceedings, in part, based on its finding that websites are not a “public accommodation” under the ADA.

While this decision is a victory for businesses—especially in Florida, Alabama, and Georgia (the states within the 11th Circuit)—that have dealt with a proliferation of website accessibility lawsuits in recent years, questions still remain for several reasons, as discussed below.

The Underlying Dispute

Most of the important facts in this case were not in dispute at the time of trial.  Winn-Dixie only sold goods in its physical stores and operated a website for the convenience of its customers, but, importantly, did not offer any sales directly through its limited use website.  The website’s primary functions that were at issue in this case were the ability to refill prescriptions for in-store pickup, and to link digital manufacturer coupons to the customer’s Winn-Dixie rewards card so that the coupons are applied automatically upon checkout at a physical store.

Plaintiff, who is legally blind, frequented Winn-Dixie’s physical grocery stores to shop and occasionally to fill his prescriptions.  Upon learning of Winn-Dixie’s website, he visited it and discovered that it was incompatible with his screen reader software, which he uses to access websites and vocalize websites’ content.

On July 1, 2016, the plaintiff filed a single claim against Winn-Dixie in the U.S. District Court for the Southern District of Florida in Miami, under Title III of the ADA.  Gil alleged that the website itself was “a place of public accommodation under the ADA,” that the website had “a direct nexus to Winn Dixie grocery stores and on-site pharmacies,” that the website was inaccessible to visually impaired individuals, and, therefore, Winn-Dixie “ha[d] not provided full and equal enjoyment of the services, facilities, privileges, advantages and accommodations provided by and through its website.”  The gravamen of his argument was that Winn-Dixie was in violation of Title III of the ADA because it discriminated against him on account of his visual disability when it failed to provide auxiliary aids and services to make its website accessible with screen reader software, which prevented him from fully and equally enjoying the “goods, services, privileges, or advantages” of Winn-Dixie.

Plaintiff sought declaratory and injunctive relief, attorney’s fees, and costs.  In particular, Gil requested an order requiring Winn-Dixie to update its website “to remove barriers in order that individuals with visual disabilities can access the website to the full extent required” by Title III.

Winn-Dixie admitted that “its physical grocery stores and pharmacies are places of public accommodation,” and that its website “was not designed specifically to integrate with screen reader software,” but denied the complaint’s allegations that its website was a place of public accommodation.

After a bench trial, the trial court entered judgment in favor of Gil, finding that Winn-Dixie had violated his rights under Title III of the ADA.  Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017).

Specifically, the court noted that it need not decide whether Winn-Dixie’s website is a public accommodation “in and of itself,” because the website is “heavily integrated” with Winn-Dixie’s physical stores—so much so that it “operates as a gateway to the physical store locations.”  Id.at 1348–49.  It held that, as 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 . . . ,’” the fact that the website is “inaccessible to visually impaired individuals who must use screen reader software ”means that Winn-Dixie has violated the ADA.  Id.at 1349.

The district court issued an injunction that, among other terms, required Winn-Dixie to make its website accessible to individuals with disabilities by conforming its website to the Web Content Accessibility Guidelines 2.0 (“WCAG2.0”), which are a set of accessibility standards generated by a private consortium.  Id.at 1351. The injunction also required Winn-Dixie to implement a publicly available Web Accessibility Policy,“ provide mandatory web accessibility training to all employees who write or develop programs or code for, or who publish final content to” its website on an annual basis, and conduct accessibility tests of the website every three months.  Id.  Winn-Dixie represented that it would take approximately $250,000 to bring its website into compliance.

Winn-Dixie appealed.

The 11th Circuit Appeal

Winn-Dixie’s appeal presented three questions:  (1) whether the plaintiff had standing to bring the case; (2) whether websites are places of public accommodation under Title III of the ADA; and (3) whether the district court erred in its verdict and judgment.  Regarding the first question, the court found that Gil did have standing to bring his Title III claim.  Regarding the second question, the majority focused on “two primary issues:  (1) whether Winn-Dixie’s website is a place of public accommodation in and of itself, such that its inaccessibility violates Title III; and (2) if it is not a place of public accommodation, whether the website otherwise violates Title III.”

The majority—made up of U.S. Circuit Judge Elizabeth L. Branch and U.S. District Judge Danny C. Reeves, who sat with the appeals court by designation—answered both of the “primary issues” in the negative.  They noted that Title III’s definitions list various “public accommodations,” but that list does not include websites.  According to the majority, “pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places.”  It went on:  “Our analysis is straightforward.  ‘In interpreting a statute a court should always turn first to one, cardinal canon before all others.  We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’ ”

The majority also found that “Winn Dixie’s website does not constitute an ‘intangible barrier’ to [the plaintiff’s] ability to access and enjoy fully and equally ‘the goods, services, facilities, privileges, advantages, or accommodations of’ a place of public accommodation,” because it has only limited functionality and is not a point of sale.

All three judges on the panel, including the one dissenter, rejected the “nexus” standard for Title III accessibility claims, whereby a plaintiff only has to demonstrate that there is a “nexus” between the website service and the physical public accommodation, finding no basis for such a standard in the ADA or precedent.

The majority declined to follow the Ninth Circuit Court of Appeal’s 2019 decision in Robles v. Domino’s Pizza, LLC (discussed here), stating that the Robles decision was ‘both factually and legally distinguishable.”  The majority noted that “[w]hile the underlying general difficulty for the plaintiff in Robles—the incompatibility of Domino’s website and app with the plaintiff’s screen reader software—is similar to Gil’s frustrations with Winn-Dixie’s website, the particular facts of Robles are distinctly and materially different from the facts of this case. Domino’s made pizza sales through its website and app; here, Winn-Dixie makes no sales of its products on its site.”  “Moreover, the application of the “nexus” standard was “critical” to the Robles’s court’s holding, but as explained above, we decline to adopt the “nexus” standard.”

Finally, the majority noted that there are difficulties in resolving the differences between the “significant inconvenience” that website inaccessibility may cause and Title III’s definition of “places of public accommodation,” stating that “constitutional separation of powers principles demand that the details concerning whether and how these difficulties should be resolved is a project best left to Congress.”

In her 34-page dissent, Judge Jill Pryor stated that “Winn-Dixie’s visually-impaired customers . . . were treated differently than its sighted customers and denied the full and equal enjoyment of services, privileges, and advantages offered by Winn-Dixie stores” and “this inferior treatment amounted to disability discrimination by the operator of a place of public accommodation under Title III of the ADA.”  Judge Pryor also noted that she “fear[s] the majority opinion’s errors will have widespread consequences” because it “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,” which, she opines, “cannot be squared with the ADA.”

Key Takeaways

The Gil decision is an important one, especially in the three states encompassing the 11th Circuit, but its implications are limited for a few reasons.

First, the decision is not binding on courts in the other circuit courts of appeal (together encompassing the 47 states other than Florida, Alabama, and Georgia) and the plaintiff has indicated his intent to seek a writ of certiorari with the U.S. Supreme Court, and may also still seek further review by filing a petition for rehearing before the full Eleventh Circuit.

Second, the Gil court emphasized several times in the majority’s decision that its decision was largely based on the fact that Winn-Dixie’s website was for a “limited use” and did not contain an e-commerce element.  Therefore, a court, even a district court within the 11th Circuit, may still come to a different conclusion if a business’s website is not “limited use” and/or has a more robust e-commerce component to it.

However, the Gil decision does provide businesses with additional precedent to use in aggressively defending Title III website accessibility cases, especially if the business operates solely online, is “limited use,” or does not have an e-commerce component.  It also may cause plaintiffs to seek more favorable fora for lawsuits outside of the 11th Circuit—like New York, Massachusetts, Vermont, or California—where there are more favorable federal court decisions and state laws that regulate website accessibility.

Additionally, the U.S. Supreme Court had an opportunity to step into the website accessibility fray in October 2019 when Domino’s Pizza filed a petition for a writ of certiorari in the Robles case.  Now that there is a more clear-cut and well-defined split of authority related to Title III’s scope, the Supreme Court may be more willing to take up Gil’s appeal.

In the interim period, while businesses wait for Congress to take up ADA amendment legislation, or for the Department of Justice—the agency primarily responsible for ADA enforcement—to issue clarifying guidance, or for the Supreme Court to address Title III compliance, there are measures businesses can take while the Title III law continues to develop.  The current “gold standard” for website accessibility is to work toward “substantial compliance” with WCAG 2.1—a version that came out after the Gil trial court decision.  In general, this standard requires businesses to implement features that help facilitate easier navigation for disabled persons that are compatible with assistive technologies.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XI, Number 112
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About this Author

Jason P. Brown Labor & Employment Litigation Attorney Hunton Andrews Kurth Washington, DC
Associate

Jason litigates complex employment and labor disputes.

Jason’s practice involves representing employers in all aspects of labor and employment litigation in defense of complaints for class action and single-plaintiff matters. He has successfully litigated and favorably resolved cases involving allegations of sexual harassment, age, race, gender, and disability discrimination, and claims of wrongful termination, harassment and retaliation. Jason has handled all aspects of civil litigation defense from case inception through trial.

Jason provides clients with practical advice...

202-955-1870
Robert T. Quackenboss Labor & Employment Litigation Attorney Hunton Andrews Kurth Washington, DC & New York, NY
Partner

Bob litigates complex employment, labor and business disputes.

Bob is a litigator who represents businesses in resolving their complex labor, employment, trade secret, non-compete and related commercial disputes. He was recognized as a Labor & Employment Star in Benchmark Litigation’s Rankings for 2019. He advises employers regarding union organizing activities, manages union election campaigns and litigates labor arbitrations nationwide. He also serves as co-chair of the firm’s Unfair Competition and Information Protection Task Force, which concentrates on trade secret theft,...

202-955-1950
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