11th Circuit Says Grocery Store Website Isn’t Covered by the ADA–Gil v. Winn-Dixie
Winn-Dixie is a major grocery store chain in the South. Their website offers multiple functions, but does NOT take grocery orders online. The website features at issue in this case are the ability to refill prescriptions online and to link coupons to the shopper’s account so they will automatically apply at in-store checkout.
The plaintiff, Gil, has a visual impairment, and he uses screen reading software to browse the Internet. The parties stipulated that Winn-Dixie’s website “was not designed specifically to integrate with screen reader software.” As a consequence, the screen reader software didn’t work with the website’s prescription refill functionality.
Gil sued Winn-Dixie for violating the ADA (Title III). Winn-Dixie admitted that its physical stores were places of public accommodation subject to Title III, but denied that its websites were similarly covered by Title III. After a bench trial, the district court ruled for Gil. In a 2-1 decision, the 11th Circuit reversed.
Are Websites Places of Public Accommodation? Title III expressly defines “grocery stores” as places of public accommodation. However, the majority says:
The statutory language in Title III of the ADA defining ‘public accommodation’ is unambiguous and clear….All of these listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed. Thus, we conclude that, pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places. Necessarily then, we hold that websites are not a place of public accommodation under Title III of the ADA. Therefore, Gil’s inability to access and communicate with the website itself is not a violation of Title III
The majority notes a circuit split on this question. It cites the 3rd, 6th, and 9th Circuits on its side, and the 1st and 7th Circuits in opposition.
Title III also can be violated if there are “intangible barriers” to enjoying places of public accommodation. That doctrine doesn’t help Gil either:
Winn-Dixie’s limited use website, although inaccessible by individuals who are visually disabled, does not function as an intangible barrier to an individual with a visual disability accessing the goods, services, privileges, or advantages of Winn-Dixie’s physical stores (the operative place of public accommodation). Specifically, Winn-Dixie’s website has only limited functionality. Most importantly, it is not a point of sale; all purchases must occur at the store. Further, 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. And nothing prevents Gil from shopping at the physical store. In fact, he had done so for many years before he freely chose to stop shopping there. Although Gil was not always happy with the speed or privacy of the service he received at the pharmacy, nothing prevented Gil from refilling his prescriptions during his time as a Winn-Dixie customer. And for years, Gil used paper coupons at Winn-Dixie’s stores, despite any inconveniences such use entailed.
The majority distinguishes the Ninth Circuit’s Robles v. Domino’s case because Winn-Dixie didn’t accept online orders, unlike Domino’s website. Also, the Ninth Circuit adopted a legal standard regarding the website’s “nexus” with the physical business, and the 11th Circuit has rejected that nexus theory.
A dissent says: “Winn-Dixie’s visually-impaired customers therefore were treated differently than its sighted customers and denied the full and equal enjoyment of services, privileges, and advantages offered by Winn-Dixie stores. I would hold that this inferior treatment amounted to disability discrimination by the operator of a place of public accommodation under Title III of the ADA….Winn-Dixie treated Gil as a second-class customer, offering him different and inferior prescription and coupon services than it provided to its nondisabled customers.”
The majority’s conclusion is not novel. I still teach the (uncited) 2003 Noah v. AOL decision. It was a Title II case, not a Title III case, but it defined places of public accommodation as “actual, physical places and structures.” That did not include AOL.
Despite the majority’s rooting in the decades-old precedent, this ruling surely compounds the misery of any lawyer trying to figure out when the ADA applies to websites. Superficially, this ruling can be harmonized with cases like Robles. If the website accepts e-commerce orders, the ADA applies; if not, no. However, the discussion about “intangible barriers,” “auxiliary aids,” and “nexus” between websites and physical businesses is sufficiently cloudy that I doubt any lawyer feels really secure advising on this question. This might be a good case for an en banc rehearing (especially because the deciding vote was cast by a district court judge sitting by designation); and the clutter among the circuits sets this issue up for an eventual Supreme Court cert if Congress doesn’t fix the statutory language itself.
On that front, recall Justice Thomas embraced “places of public accommodation” as a way of mandating must-carry rules on Internet services. If a website ADA case does go up to the Supreme Court, I’m not sure how the “conservative” justices will proceed. Consistent with Justice Thomas’ censorial goals, an activist conservative jurist might actually reject the Gil majority’s reasoning to facilitate allowing suits against websites for discriminatory content moderation. However, the author of the majority opinion in Gil is a Trump appointee. This suggests that “conservative” judges may struggle choosing among the conflicting goals of using civil rights laws to advance censorship or disadvantaging minority interests to favor businesses.
Here’s the piece I don’t understand. Obviously Winn-Dixie didn’t want to get buried by an avalanche of ADA plaintiffs, but according to the majority opinion, Winn-Dixie said it would cost $250k to get its website in compliance with the ADA (or maybe it’s just screen readers–the language isn’t precise). $250k is almost certainly less than Winn-Dixie spent on its defense costs here. So it seems like Winn-Dixie would have saved money by paying some settlement money to Gil and spending $250k to fix the site; plus, compliance would generate additional revenues from visually impaired customers. Why didn’t Winn-Dixie do that?
Case citation: Gil v. Winn-Dixie Stores Inc., 993 F.3d 1266 (11th Cir. April 7, 2021)
Some related blog posts:
- Reviewing the Americans With Disabilities Act’s Application to Websites–Martinez v. SDCCU
- Section 230 Applies to ADA Closed Captioning Claims–National Federation of the Deaf v. Harvard
- Scribd Must Comply With The Americans With Disabilities Act
- Will the Floodgates Open Up for Americans with Disabilities Act (ADA) Claims Against Websites?–National Association of the Deaf v. Netflix
- Another Ruling that the Americans with Disabilities Act Doesn’t Apply to Websites–Ouellette v. Viacom
- eBay’s Venue Selection Clause Upheld in Missouri–Earll v. eBay
- Facebook User Loses Lawsuit Over Account Termination–Young v. Facebook
- National Federation of the Blind v. Target Class Certified