A blind Winn-Dixie customer who couldn’t refill a prescription with a computer wants the entire Eleventh Ward to overturn a ruling that was the first time a federal appeals court said websites were not covered by the Americans with Disabilities Act .
Other federal and district courts have taken a broader view of whether and when the Disabled People’s Anti-Bias Act of 1990 applies, saying that “accommodation locations” go beyond the physical locations explicitly stated in the federal law.
And the Covid-19 pandemic, which has driven a surge in people into e-commerce, underscores 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 says it is critical for visually impaired consumers that the ADA be interpreted broadly, a movement he believes the Federal Disability Act allows. “Although Congress did not include websites in the text of the statute, we believe that e-commerce falls under what the ADA should achieve,” he said.
The National Federation of the Blind and other disability rights groups agree, citing in their amicus briefing backing Gil’s request for a sample, a data sheet from the Pew Research Center that said approximately 93% of Americans were using the internet in 2021.
‘Places of public accommodation’
Title III of the ADA prohibits public accommodation from discriminating in access to goods and services on the basis of disability. The law lists 12 categories of “public accommodation”, all of which are physical spaces.
But the first, second, and seventh circles all said that a place of public housing is not necessarily limited to a physical space. According to The Ninth Circuit, companies can be held liable for inaccessible websites under the ADA if there is a connection between the website and a physical location such as a store.
The Supreme Court declined in 2019 to review the ninth district ruling that allowed a blind Domino customer to sue the pizza chain through their website.
The April 11th District Appeals Court ruling that websites are not public accommodations under the law has broken apart from other circles – and it’s a ruling that has departed from precedent within the district, according to Gil’s attorneys .
They argue that in 2002 the Eleventh Ward used a “nexus” approach to determine whether the ADA was applicable, much like the ninth Ward 17 years later. By that standard, if the website serves as a gateway to what the company offers or sells, the law applies, say Gil’s lawyers.
Gil sued in 2016 after unable to use Winn-Dixie’s website to refill recipes because it was incompatible with his screen reading software.
Gil won a bank verdict and injunction on June 12, 2017 calling on the supermarket chain to keep its website accessible for three years.
A website is not a public accommodation, said 11th district judge Elizabeth L. Branch as she overturned that decision. Only physical locations are public accommodation for the purposes of the ADA, said their majority opinion.
Gil was not denied entry, said Branch, because he could still enter the store.
Days after the decision, a court judge denied his mandate, effectively freezing the case. Gil’s request for a sample followed.
The fact that the majority of the panel is abandoning the Eleventh Circle “Nexus” standard to determine whether the ADA applies to a public accommodation website warrants a full court hearing, Gil says.
The new majority view of when and whether a website is subject to the ADA deviates from the legal text that prohibits “different treatment” of people with disabilities and the regulation that requires the provision of “appropriate tools and services” in order to be effective Communicate with people with disabilities, says Gil.
And the majority, needlessly, felt that websites weren’t “public accommodations,” per se, says Gil. The district court failed to rule that issue and the panel said it was not required to settle the appeal, he says.
No nexus for Winn-Dixie
However, Winn-Dixie Stores Inc. says in its June 1 briefing that the entire Eleventh Circle should thaw the case and let the panel’s majority vote pass.
The panel adequately dealt with the question of whether a website can be a public accommodation for the purposes of the ADA. The general matter was properly litigated in court and in the appellate body, says Winn-Dixie.
Nor does the opinion contradict the precedent, as the Nexus standard was not established in the Eleventh Circle, according to Winn-Dixie. The cases Gil relies on are district court cases “which clearly have no precedent” in the appeals court and an unpublished statement, it said.
Susan V. Warner, who represents Winn-Dixie, said she was unable to comment on the case beyond filing. However, it did acknowledge significant improvements in the shop’s online functionality and accessibility for the visually impaired.
“The website has been updated since testing and Winn-Dixie has implemented WCAG 2.0 AA as the Internet accessibility standard, with the website regularly tested to ensure compliance,” said Warner.
Expired injunction and mootness
Gil also has an alternative argument. Instead of deciding on the content of the disability issue, the appeals court could dismiss the appeal as contentious, say its lawyers, because the district court’s three-year injunction has expired.
Such a dismissal would overturn the panel’s decision, said David Ferleger, another of Gil’s attorneys.
Gil also says that Winn-Dixie’s website is much more functional – and accessible – now than it was five years ago when he sued five years ago. The grocer now allows its customers to buy products, arrange deliveries and schedule Covid-19 vaccines in Florida stores online.
But the grocery chain says the appeal is not in dispute and that if the Eleventh Ward rehearses the case, it should uphold the panel’s decision.
The expiry of the injunction alone cannot create an appeal, and there is also an outstanding award of nearly $ 100,000 in attorney fees and expenses to Gil as the victorious party dependent on that appeal, Winn-Dixie says.
Winn-Dixie says it is entitled to let the Eleventh Ward decide whether the court was right on the matter and whether the ADA covers websites.
Such a statement “relates not only to Winn-Dixie’s liability to Gil in this case, but also to the legal obligations that Winn-Dixie has under the ADA to its website and other parties who may make similar claims” , is it[called
Lower, or Jenkintown, Pennsylvania, and Entin of the Entin Law Group of Fort Lauderdale, Florida, represent Gil. Warner represents Winn-Dixie with FisherBroyles LLP in Miami.
The case is Gil v. Winn-Dixie Stores, Inc., 11th Cir., No. 17-13467, reply 6/1/21.