A blind Winn-Dixie customer who couldn’t refill a prescription using a computer wants the full Eleventh Circuit to throw out a decision that marked the first time a federal appeals court said websites aren’t covered by the Americans with Disabilities Act.
Other federal circuit and district courts have taken a more expansive view of whether and when the 1990 disability anti-bias law applies, saying “places of accommodation” goes beyond just the physical places specifically recounted in the federal law.
And the Covid-19 pandemic, which drove a surge of people to e-commerce, highlights the importance of clarifying and expanding accessibility standards, Joshua M. Entin, one of plaintiff Juan Gil’s attorneys, told Bloomberg Law.
As e-commerce continues to grow, Entin said, it’s critical to visually impaired consumers that the ADA be interpreted broadly, a movement he believes the federal disability law allows. “Even though Congress didn’t put websites in the text of the statute, we believe e-commerce falls within what the ADA was designed to accomplish,” he said.
The National Federation of the Blind and other disability rights groups agree, and in their amicus brief supporting Gil’s request for a rehearing, they cite a Pew Research Center fact sheet that says about 93% of Americans used the internet in 2021.
‘Places of Public Accommodation’
Title III of the ADA prohibits places of public accommodation from discriminating on the basis of disability when providing access to goods and services. The law lists 12 categories of “places of public accommodation,” all of which are physical spaces.
But the First, Second, and Seventh circuits have all said a place of public accommodation isn’t necessarily limited to a physical space. The Ninth Circuit has said companies can be liable under the ADA for inaccessible websites if there is a connection between the site and a physical place, such as a store.
The U.S. Court of Appeals for the Eleventh Circuit’s April decision that websites aren’t places of public accommodation covered by the law broke from other circuits—and it’s a ruling Gil’s attorneys say departed from precedent within the circuit.
They argue that in 2002, the Eleventh Circuit used a “nexus” approach to determine whether the ADA applies, similar to what the Ninth Circuit did 17 years later. Under that standard, the law applies when the website serves as a gateway to what the business provides or sells, Gil’s attorneys say.
Gil sued in 2016 after he wasn’t able to use Winn-Dixie’s website to refill prescriptions because it wasn’t compatible with his screen-reading software.
Gil won a June 12, 2017, bench verdict and injunction requiring the supermarket chain to make its website accessible for three years.
A website isn’t a public accommodation, Eleventh Circuit Judge Elizabeth L. Branch said in overturning that decision. Only physical locations are public accommodations under the ADA, her majority opinion said.
Gil also wasn’t denied access, Branch said, because he could still go inside the store.
Days after the decision, a judge on the court withheld its mandate, effectively freezing the case. Gil’s petition for a rehearing followed.
The panel majority’s abandonment of the Eleventh Circuit’s “nexus” standard for determining whether the ADA applies to a public accommodation’s website warrants rehearing by the full court, Gil says.
The majority’s new take on when and whether a website is subject to the ADA deviates from the law’s text, which prohibits “different treatment” of individuals with disabilities, and the regulation that requires the furnishing of “appropriate auxiliary aids and services” to ensure effective communication with individuals with disabilities, Gil says.
And the majority unnecessarily held that websites per se aren’t “places of public accommodation,” Gil says. The district court didn’t decide that issue and the panel said it wasn’t needed to resolve the appeal, he says.
No Nexus for Winn-Dixie
Winn-Dixie Stores Inc., though, says in its June 1 brief that the full Eleventh Circuit should unfreeze the case and let the panel majority decision stand.
The panel appropriately addressed whether a website can be a place of public accommodation under the ADA. The general matter was properly at issue and fully litigated in the trial court and on appeal, Winn-Dixie says.
The opinion also doesn’t conflict with precedent because the nexus standard wasn’t established in the Eleventh Circuit, according to Winn-Dixie. The cases on which Gil relies are district court cases, “which clearly have no precedential authority” in the appeals court, and an unpublished opinion, it says.
Susan V. Warner, who represents Winn-Dixie, said she couldn’t comment on the case beyond the filing. But she acknowledged significant improvements in the store’s online capabilities and access for the visually impaired.
“Since the time of trial, there have been updates to the website, and Winn-Dixie has implemented WCAG 2.0 AA as its web accessibility standard, with the website tested on a periodic basis to ensure compliance,” Warner said.
Expired Injunction and Mootness
Gil also has an alternative argument. Rather than deciding the substance of the disability access question, the appeals court could dismiss the appeal as moot, his lawyers say, because the three-year injunction ordered by the district court has expired.
Such a dismissal would vacate the panel’s decision, David Ferleger, another of Gil’s attorneys, said.
Gil also says Winn-Dixie’s website is far more functional now—and accessible—than it was when he sued five years ago, with the grocer now allowing customers to go online to buy products, arrange deliveries, and schedule Covid-19 vaccines in Florida stores.
But the grocery chain says the appeal isn’t moot, and that the Eleventh Circuit, if it rehears the case, should uphold the panel’s decision.
The expiration of the permanent injunction alone can’t moot an appeal, and there also is an outstanding award of nearly $100,000 in attorneys’ fees and costs to Gil as the prevailing party, which is contingent on this appeal, Winn-Dixie says.
Winn-Dixie says it’s entitled to have the Eleventh Circuit decide whether the trial court was correct on the merits and whether the ADA covers websites.
Such a determination “goes not only to Winn-Dixie’s liability to Gil in this case, but also to what legal obligations Winn-Dixie has under the ADA as to its website and to other parties who might assert similar claims,” it says.
Ferleger, of Jenkintown, Pa., and Entin, of the Entin Law Group in Fort Lauderdale, Fla., represent Gil. Warner, with FisherBroyles LLP in Miami, represents Winn-Dixie.
The case is Gil v. Winn-Dixie Stores, Inc., 11th Cir., No. 17-13467, response 6/1/21.