After the Eleventh Circle made us wait with bated breath for several years, it finally broke its silence and issued its long-awaited decision in the Gil v. Winn-Dixie Stores that Web Sites are not considered public accommodation places under Title III of the Disabled Americans Act (“Title III” or “ADA”). In doing so, the court overturned and cleaned up the District Court’s decision which found that the defendant Winn-Dixie Stores had violated Title III by not maintaining a website accessible to the blind or visually impaired.
To the extent that companies, individuals, and disability rights advocates have hoped that this decision would help provide some much-needed definitive guidance in this area of the law, they are no doubt all disappointed. While the decision should affect plaintiffs’ ability to successfully manage website accessibility for certain types of businesses / websites in the eleventh circuit, it changes little to immediately change the current state of the law at the national level.
Regardless, the collective 61-page majority and dissenting opinions include additional analysis on this ever-evolving area. Below are three key lessons learned from this long-awaited decision, as well as our considerations for the future.
Snack No. 1: According to the Eleventh Circle, websites under the ADA are not public accommodations
The majority opinion reached its decision by adopting an extremely strict interpretation of the ADA, which differs from many district and appeals courts elsewhere, stating that websites are not considered “Public Housing Places” (“PPA”) under Title III, accordingly Plaintiff’s inability to access the Website in and of itself is not a violation of Title III.
As amended, Title III applies to PPAs which, as the Court correctly notes, are expressly defined as physical, tangible places such as retail stores, hotels, restaurants and theaters. Notwithstanding the ADA’s previous examples of PPAs, a number of courts in other circles have determined that businesses must make their Title III websites accessible by applying one of two theories:
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The “spirit of the law” theory states that the ADA must be read, as the ADA is a far-reaching civil rights law that is designed to give people with disabilities unrestricted and equal access to various facets of society as the development of Society and technology advancing, and websites offering goods and services to the public are the modern day equivalents of many of the stationary PPAs defined in the original text and regulations for the ADA. Hence, access must be granted. or
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The “nexus” theory, which provides that websites that have a “nexus” to the physical PPA must be accessible to people with disabilities as they are an extension of the goods / services / amenities offered by the clearly covered PPA.
Here, the majority completely rejected the “spirit of the law” approach, as it contradicted the simple and unambiguous text of the ADA, and furthermore decided to adopt the “nexus” theory (which was used in the decision of the ninth circle in Robles v. Domino’s), noting that it wasn’t something that had previously been pursued in the Eleventh Circle.
Instead, the Eleventh Circle believed that Congress should be encouraged to amend the ADA if its protection were extended to web sites. Since Congress did not extend the definition of PPA to web sites, it declined to extend ADA’s liability to the facts presented [it] Here.”
Takeaway # 2: The Eleventh Circuit maintains an alternate theory of potential liability under Title III, but notes that it still does not result in Winn-Dixie’s website violating Title III
After the appeals court rejected both of the above theories, it adopted an alternative “third” liability theory – the “intangible barrier” theory. In particular, the Court ruled that a website inaccessible to people with disabilities would only breach Title III if it constituted an “intangible barrier” to access to goods / services in a physical, stationary location. We found that the inaccessibility of Winn-Dixie’s website was not an “intangible barrier” as it was used to a limited extent. It is not the only point of entry into the company’s stores and does not prevent the plaintiff from enjoying or accessing the goods / services Winn-Dixie offers in its stores. (In fact, the court found that the plaintiff had admittedly been shopping at one of Winn-Dixie’s stores for years before filing his lawsuit). The court found critical that the Winn-Dixie website does not allow users to make purchases on the website. On the contrary, all purchases are made in the stores and it has been found that whatever a user can do on the site is also in the stores.
What is important is that the majority were not swayed by the plaintiff’s arguments that the inaccessibility of the website forced them to cope with additional inconveniences that those without disabilities who could use the website would not encounter (e.g. prolonged personal Medication collection waiting times; inability) to independently access vouchers at home) and denied his claim that these inequalities prevented him from enjoying the full and equal convenience of the grocery store or passed the “intangible barrier” test.
Snack # 3: The implications of this decision are limited
While this decision is sure to generate significant amounts of reporting and certainly makes it more difficult to make website accessibility claims under the ADA on the Eleventh Circuit, it is unlikely to have a significant impact on this area of law in the near future national level.
While the majority felt that Winn-Dixie did not violate Title III by maintaining an inaccessible website, it was mentioned more than once that the fact that the website did not have an ecommerce component associated with the store was a factor was making his decision.
Undoubtedly, the decision provides ammunition for companies to fight back aggressively against cases filed in the Eleventh Circuit where: (i) a company is only online and has no connection whatsoever to a physical PPA; or (ii) the website in question is primarily for informational purposes and does not contain an e-commerce component. Given that a significant number of legal disputes and accessibility letters continue to originate from Florida websites, this should bring relief to Florida companies falling into either of these two categories.
As noted above, the Eleventh Circle ruling is inconsistent with the ruling in several other counties and district courts and therefore is unlikely to deter plaintiffs from simply switching forums and filing claims in jurisdictions that are more pro-plaintiff Have adopted theories of the law, such as New York, Massachusetts, Vermont, or California where Title III and / or state / local law require currently accessible websites.
looking ahead
The plaintiff’s attorney in this case has vowed to appeal to the Supreme Court. While the Supreme Court had previously denied Domino’s efforts to seek a review of his case on the ninth circuit, it is possible that the tension between the two cases will eventually be enough for the court to charter.
Although recent efforts in the past six months have proven unsuccessful, there is a bipartisan interest in some Congress members in changing the ADA to explicitly regulate digital accessibility. Similarly, if Congress approves Kristen Clarke as director of the Department of Civil Rights of the US Department of Justice (“DOJ”), the DOJ’s Disability Rights Department can work with the US Access Board to undermine previous efforts Obama to restart administration to publish and pass federal regulations for website and mobile application accessibility. Interested parties should keep an eye out for announcements of such developments in July around the anniversary of the ADA and will of course report on such announcements.
In the meantime, as we’ve noted for years, the best way to avoid falling victim to the current accessibility litigation of sites like Gil v Winn-Dixie Stores and Robles v Domino is to have some substantial compliance with the Achieve Web Content Accessibility Guidelines (“WCAG”) 2.1 Levels A and AA (as verified by human review from both a code and user perspective), compliance with internal digital accessibility guidelines and corporate governance procedures, inclusion of website accessibility obligations in all third-party contracts, training relevant staff on how to develop, operate and maintain an accessible website, and ensure that these efforts are continued and not just one-off.
© 2020 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XI, Number 98
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