By Minh N. Vu
Seyfarth Synopsis: The Eleventh Circuit’s much-anticipated decision in Gil v. Winn Dixie sets a higher bar for plaintiffs in website accessibility lawsuits and creates a conflict among judicial circuits that could result in Supreme Court review; Gil promptly filed a Petition for Rehearing en banc.
After two and a half years of deliberation, the Court of Appeals for the Eleventh Circuit finally issued a decision in Gil v. Winn Dixie, overturning the trial court’s finding that Winn Dixie violated the ADA by having an inaccessible website. Rather than clarifying the state of the law on website accessibility, the decision makes the law on website accessibility even more complicated.
Plaintiff Gil, who is blind, sued grocery retailer Winn Dixie alleging that the business violated the ADA by having a website that he could not access using screen reader software. He claimed that he wanted to use the website to order prescriptions which he would pick up at the store. He later also claimed that he wanted to download online coupons onto his rewards card for use at the store. After a bench trial, the district court concluded that the website was not accessible to screen reader users and that Winn Dixie had violated the ADA. The district court found that it did not need to decide whether websites are covered by the ADA because, in this case, the website was “heavily integrated” with Winn Dixie’s physical stores (which are undoubtedly public accommodations) and acted as a “gateway” to them. The court issued a detailed injunctive relief order which, among other things, required Winn Dixie to make its website conform to the Web Content Accessibility Guideline 2.0 Level AA – a privately developed set of criteria for web accessibility that has not been adopted as a legal standard under the ADA for public accommodations websites.
Two and a half years after hearing oral argument on Winn Dixie’s appeal, the Eleventh Circuit reversed the lower court’s determination in favor of the Plaintiff, finding that (1) the retailer did not violate the ADA because its website is not a place of public accommodation, and (2) the website did not pose an “intangible barrier” to his access to the goods, services, privilege’s, or advantages of Winn Dixie’s physical stores.
The finding that websites are not places of public accommodation under the ADA is consistent with the position the Eleventh Circuit has taken in prior cases. In support, the Court cited to the statutory definition of the term “public accommodation” which, it noted, was an “expansive list of physical locations” that does not include websites.
The Court acknowledged that Gil could state a claim for a violation of the ADA if he could show that the website constituted an “intangible barrier” to his access to the goods, services, privilege’s, or advantages of Winn Dixie’s physical stores, but found that Winn Dixie’s website did not present such a barrier. The Court based this conclusion on two key facts: (1) No goods or services could be purchased on the website; and (2) “all interactions with Winn-Dixie which can be (although need not be) initiated on the website must be completed in-store: prescription pick-ups and redemption of coupons.”
The Court distinguished this case from its prior decision in Rendon v. Valleycrest Productions, Ltd. where it held that the producers of the Who Wants to Be A Millionaire game show violated the ADA by providing only a telephonic means — which was not accessible to people who were deaf or had limited dexterity — of competing for a spot on the show. The Eleventh Circuit emphasized that in Rendon, the telephone screening process was the “sole access point for individuals to compete for the privilege of being a contestant on the game show” and thus “acted as an ‘intangible barrier’ that prevented the plaintiffs from ‘accessing a privilege’ of a physical place of public accommodation (the game show).” The Court found that the Winn Dixie website, in contrast, had “limited functionality” and was “not a point of sale.”
The Court also distinguished the case from Robles v. Domino’s where the Ninth Circuit concluded that the plaintiff had stated a claim against Domino’s under the ADA by alleging that the pizza delivery company had an inaccessible website. The Eleventh Circuit underscored that purchases could be made on the Domino’s website, unlike the Winn Dixie website.
The Eleventh Circuit also went out of its way to point out that it did not agree with the Ninth’s Circuit’s position that a website with a “nexus” to a physical place of public accommodation is covered by the ADA. The Court said: “[W]e decline to adopt the “nexus” standard. In sum, we do not find Robles persuasive, either factually or legally.”
We could say much more about the sixty-seven page decision, but we’ll leave you with a few immediate reactions.
First, there are now at least three different theories of liability for website accessibility adopted by federal courts of appeal. In the Eleventh Circuit, to establish a violation of the ADA based on an inaccessible website, a plaintiff must show that the inaccessibility of the website prevented him or her from accessing the goods, services, privileges, or advantages of a physical place of public accommodation. In the Ninth Circuit, a plaintiff would only have to show that an inaccessible website has a nexus to a physical place of public accommodation to establish ADA liability. In the First Circuit — which has not yet considered a website accessibility case — a plaintiff would have a strong argument under current precedent that a website that falls into one of the twelve categories of businesses in the ADA’s definition of the term “public accommodation” would be covered under the ADA, even if it has no physical place of public accommodation.
Second, while the Winn Dixie decision makes the Eleventh Circuit a less attractive venue for plaintiffs seeking to file website accessibility lawsuits than before, such plaintiffs can always choose to file in a different circuit where the precedent is more favorable. Thus, we do not believe this decision will have much impact on the number of website accessibility lawsuits filed.
Third, the likelihood of the U.S. Supreme Court taking up this issue has certainly increased now that there is a conflict between the Eleventh Circuit and the Ninth Circuit as to when an inaccessible website belonging to a physical place of public accommodation violates the ADA.
Stay tuned to find out if Plaintiff Gil files a Petition for Certiorari.
April 15, 2021 UPDATE: Earlier today, plaintiff Juan Carlos Gil filed in the Eleventh Circuit Court of Appeals a Petition for Rehearing en banc. Gil argues that the issues in the case are of exceptional importance and that, inter alia, the panel deviated from prior Eleventh Circuit precedent in rejecting the “nexus” standard.
Edited by Kristina Launey