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Businesses With Websites Beware: Significant Website Accessibility Decision in 11th Circuit Will Not Stop All Lawsuits

Labor & Employment Kelly Lyon Davis

US Court of Appeals in Washington DC

Despite what appears to be a significant win for businesses in the area of website accessibility, do not pump the breaks on your company’s website accessibility plans just yet.

The U.S. Court of Appeals for the Eleventh Circuit recently issued what may appear to be a landmark decision, overturning the trial court victory for a disabled individual who claimed that grocery retailer Winn-Dixie Stores, Inc. violated Title III of the Americans with Disabilities Act (“ADA”). The employee claimed the website was inaccessible to individuals with disabilities because it was not compatible with screen reader software, a common complaint of blind and low-vision plaintiffs.

Although the ruling is a win for Winn-Dixie and other businesses in Alabama, Florida, and Georgia if sued in federal court, it further confuses the issue of website accessibility for businesses operating in multiple jurisdictions. In Gil v. Winn-Dixie Stores, Inc., the Eleventh Circuit held that websites are not places of public accommodation and the inaccessibility of a place of public accommodation’s website must serve as an intangible barrier to an individual’s access to the services, privileges, and advantages of the physical places in order to be actionable under Title III.

In reversing the Southern District of Florida’s trial victory for Juan Carlos Gil, which required Winn-Dixie to bring its website into compliance with the standards detailed in the voluntary Web Content Accessibility Guidelines (WCAG 2.0), the Court started with an analysis of the text of Title III and found the statutory language is “unambiguous and clear” in describing 12 types of tangible, physical places that are public accommodations. The statutory language clearly does not include websites. It held, therefore, that the inaccessibility of the website itself is not a violation of Title III.

That determination did not end the Court’s inquiry, as it next analyzed whether the inaccessibility of the website operated as an “intangible barrier” to equal access to the services, privileges, and advantages of the physical locations (which are, plainly, places of public accommodation). Title III requires places of public accommodation to take steps to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently because of the absence of auxiliary aids and services. The Eleventh Circuit has previously stated that the failure to provide a reasonable auxiliary service may create an intangible barrier in violation of Title III. The Eleventh Circuit described Winn-Dixie’s website as a “limited-use website” and stated that it does not serve as an intangible barrier to accessing the goods, services, privileges, or advantages within Winn-Dixie’s stores. Although the majority recognized certain differences in Gil’s experience than others who could effectively use Winn-Dixie’s website to initiate prescription refills online, for example, the Court explained that Gil was not excluded from, denied the services of, segregated, or otherwise treated differently than other individuals in the physical stores and did not find controlling the fact that his experience in the store may be different from another customer who also interacted online before coming to the store.

Finally, the Court addressed the “nexus” standard applied by the lower court at trial, and by other courts in various jurisdictions around the country, whereby courts have held that websites are subject to the accessibility requirements of Title III when there is a sufficient link between the website and the brick and mortar place of public accommodation. The trial court had concluded that Winn-Dixie’s website was heavily integrated with and operated as a gateway to the physical stores. The Eleventh Circuit rejected this nexus standard, finding no basis for it in the statutory language of the ADA or the Court’s precedent. The Court also distinguished, both factually and legally, the Ninth Circuit’s decision in Robles v. Domino’s Pizza, LLC, 913 F. 3d 898 (9th Cir.), cert. denied, 140 S. Ct. 122 (2019), discussed here. The primary factual difference highlighted by the Eleventh Circuit relates to the function for which the plaintiff was using the website. In Robles, Domino’s customers were able to purchase pizzas through the website and mobile app. In Gil, Winn-Dixie makes no sales of products on its website -- customers can initiate purchases online, but they must complete the sales in the stores -- and the inability to access the website does not impede the access to goods and services offered in the stores. For retailers allowing customers to complete purchases online, this latest ruling may not offer as much relief as it does for Winn-Dixie and other retailers with websites that are informative but do not permit online transactions.

While this ruling may slow the tsunami of Title III lawsuits within the Eleventh Circuit, there remains a split among circuits and in state courts considering website accessibility requirements under state and local disability discrimination laws. Therefore, businesses with customers in multiple jurisdictions should continue to evaluate their websites and mobile apps for accessibility, and make plans to address any deficiencies. Increased website accessibility has business benefits beyond litigation avoidance.

To learn more about website accessibility or for assistance with a demand letter or litigation about your business’ website, please contact your local Quarles & Brady attorney or: