ADA Ruling Highlights Circuit Conflict Over Web Accessibility

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On appeal from the first significant federal trial to address whether brick-and-mortar retailers must maintain an accessible website, the U.S. Court of Appeals for the Eleventh Circuit has held that grocery store chain Winn-Dixie Stores Inc. need not make its website accessible to blind people.

In a case closely watched by disability advocates as well as businesses under siege from website-access litigation, the court joined the U.S Courts of Appeal for the Third, Sixth and Ninth Circuits in holding that "place of public accommodation" under Title III of the Americans with Disabilities Act means a physical place. Thus, a website in and of itself need not be accessible.

The court also held that even when a website is associated with a physical place, such as a store, the website need not be accessible unless it poses an intangible barrier to accessing the store — disagreeing with the U.S. Court of Appeals for the Ninth Circuit that a mere nexus between a website and a physical place was sufficient to require online accessibility.

From the perspective of ADA defendants, the opinion in Gil v. Winn-Dixie Stores represents a promising development, although its overall impact is likely to be limited.

The holding, which includes a blistering dissent, applies only in the Eleventh Circuit and is based on the particular facts of the case. The federal circuit courts remain divided on whether business websites must always be accessible — The U.S. Courts of Appeal for the First, Second and Seventh Circuits suggesting yes, and the Third, Sixth, Ninth and Eleventh suggesting no1 — underscoring the need for Congress, the U.S. Department of Justice or the U.S. Supreme Court to resolve continuing uncertainty concerning online accessibility requirements.

Discussion of the Case

Winn-Dixie owns grocery stores with pharmacies in the southeastern U.S.

Through Winn-Dixie's website, customers can place orders for prescription refills to be picked up at the store, reducing wait times and enhancing privacy.

Customers can also use the website to find store locations and to link coupons to their rewards cards such that discounts are automatically applied to in-store purchases. Winn-Dixie does not sell merchandise online.

Plaintiff Juan Carlos Gil claimed that Winn-Dixie violated the ADA because its website was not compatible with screen-reader software that Gil, who is blind, uses to navigate the web. Gil prevailed.

The U.S. District Court for the Southern District of Florida found a nexus between Winn-Dixie's website and its stores, and ordered Winn-Dixie to make its website accessible under the Web Content Accessibility Guidelines 2.0, a private set of accessibility guidelines with widespread adoption.

The district court found it unnecessary to decide whether websites without a nexus to a physical place must be accessible.

Winn-Dixie appealed. The Eleventh Circuit began by holding that websites, in isolation, are not subject to accessibility requirements because the ADA defines places of public accommodation solely in terms of physical places. Given the basis of the district court's holding, Gil did not address that issue on appeal — an anomaly cited by the dissenting judge.

The Eleventh Circuit then addressed whether Winn-Dixie was required to make its website accessible insofar as it had some connection with the physical stores. The court's analysis was guided by its 2002 holding in Rendon v. Valleycrest,2 which considered whether the process for vying to be a contestant on the TV show "Who Wants to Be a Millionaire" violated the ADA because it required quick operation of a telephone keypad, disadvantaging people with certain disabilities.

The Eleventh Circuit allowed the claim in Rendon to proceed because the telephone contest was the only way to earn a place on a show filmed in a physical place, thereby functioning as an intangible barrier to access by disabled persons.

Applying Rendon, the court held that Winn-Dixie's website did not operate as an intangible barrier to access. Gil could still visit the store and make his purchases.

The court also explained that the governing ADA provision only requires a place of public accommodation to "take such steps as may be necessary" to avoid discrimination,3 and an accessible website wasn't necessary for Gil to have equal access to the store and its goods and services.

In addition, the court rejected the nexus test recently adopted by the Ninth Circuit in Robles v. Domino's Pizza LLC,4 finding no basis for that test in the ADA or the case law.

Space does not allow for a full discussion of the dissenting opinion. The upshot is that the website is integral to the benefits, advantages, etc., offered by Winn-Dixie at its stores, given that website users can expedite their prescription refills and coupon redemptions.

Thus, the dissent argued, because blind customers were deprived of those benefits and advantages, they were treated differently based on disability, in violation of the ADA.

Implications

This latest decision from the Eleventh Circuit, while analytically consistent with its prior holding in Rendon, serves as another reminder of the irreconcilable conflict among the circuit courts as to how websites figure, if at all, under Title III.

The various courts, trying to divine whether or to what extent a pre-internet statute was intended to govern online commerce, have reached a panoply of outcomes that leave businesses bewildered as to what the rules are. This uncertainty will persist until Congress or the DOJ clarifies the rules or the Supreme Court steps in.

But Winn-Dixie's appellate victory remains noteworthy.

The vast majority of website cases settle quietly and early, as defendants are deterred from litigating by the ADA's plaintiff-only attorney fee clause and the lack of reliable liability standards.

This case demonstrates that, with sufficient resources and the right facts in the right court, a website accessibility claim can be defended — although Winn-Dixie is not necessarily out of the woods — given the heated dissent, en banc review would not be surprising.

That said, the only immediate implication of Winn-Dixie is for businesses that operate primarily, if not solely, within the Eleventh Circuit — and even then, protection from accessibility complaints is likely to be highly dependent on how the website relates to a company's stores.

Language in the Winn-Dixie opinion suggests that the outcome could have been different had Winn-Dixie sold merchandise through its website.

But for companies operating in other jurisdictions or nationwide, nothing of significance will change, as the outcome will still depend on where an accessibility lawsuit is filed and the particular facts of the case.

End Notes:

1 Not all of these circuits have addressed head-on whether websites are places of public accommodation. Some decided whether the ADA extends to nonphysical "places" in other contexts, such as radio broadcasts or employer-sponsored health plans. District courts within such circuits have assumed that the same rationale would apply to websites.

2 Rendon v. Valleycrest Prods., Ltd ., 294 F.3d 1279 (11th Cir. 2002).

3 42 U.S.C. § 12182(b)(2)(A)(iii).

4 Robles v. Domino's Pizza, LLC , 913 F.3d 898 (9th Cir.), cert. denied, 140 S. Ct. 122 (2019).

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