April 9, 2021

Because Of Winn-Dixie, Companies Threatened With Website-Accessibility Litigation Can Raise Stronger Defenses

A federal appeals court has issued a long-awaited decision rejecting a claim that anti-discrimination law requires a retail store’s website to be accessible to the disabled. Any company with a customer-facing website — whether or not the company has a physical location — should be attentive to the possibility of website-accessibility litigation. These lawsuits have skyrocketed in recent years, but very few of them have made it to the appellate level. 

The April 7 decision in Gil v. Winn-Dixie Stores provides new appellate authority for companies defending these lawsuits. The U.S. Court of Appeals for the Eleventh Circuit, which covers Florida, Georgia, and Alabama, held that websites are not places of public accommodation and are not required to be accessible even though the defendant’s physical stores are required to be accessible.

Courts in other parts of the country disagree with the Eleventh Circuit, so the decision will not stop the flow of litigation by itself. Rather, it gives companies new arguments to resist website-accessibility claims, it makes the choice of venue more important, and it increases the chances that the Supreme Court will eventually need to resolve the issue.

Website Accessibility Lawsuits Are Becoming More And More Frequent

Title III of the Americans with Disabilities Act (ADA) requires “places of public accommodation” to be accessible to anyone with a disability. Under Title III, disability discrimination in “places of public accommodation” can include a denial of service because the absence of “auxiliary aids and services.” This could include refusals to allow a disabled person to use his or her own auxiliary aid, like a service dog. The ADA was adopted in 1991 and does not specifically address how its provisions apply to websites.

Monetary damages are not available under Title III of the ADA, but are available under several state and local laws that otherwise mirror the ADA in all or most substantive respects. Indeed, some of these state and local laws offer “statutory damages” — a fixed penalty of hundreds or even thousands of dollars for any violation of the statute, regardless of whether the plaintiff can prove any tangible harm. A class action under one of these statutes, therefore, can threaten extremely large liability. Moreover, a successful ADA plaintiff may also be entitled to attorney’s fees.

In recent years plaintiffs have been extremely active in targeting websites that they claim are inaccessible to disabled visitors — especially blind visitors who use screen-reader software. Often a single plaintiff will file dozens of lawsuits on the same day against companies in the same industry, claiming to have visited each company’s website and found it noncompatible with screen-reader software in certain respects. For example, plaintiffs frequently claim that graphics or images do not have adequate textual descriptions embedded in the website’s code, or that the website is set up in a way that makes it difficult to navigate using a screen reader. Incompatibility with screen readers, the plaintiffs allege, deprives them of “auxiliary aids” like barring service dogs.

Several older appellate cases hold that Title III of the ADA applies only to physical places. These cases led district courts to dismiss many early website-accessibility cases on the ground that a website is not a physical place.

More recently, a number of courts have held that the ADA requires websites to be accessible to users with disabilities. Some of these courts have tied this requirement to a “nexus” with a physical place of public accommodation: they have reasoned that if the ADA requires a physical store to be accessible, and if the website helps customers find or use a physical store, then the website must be accessible as well. Under these cases, online-only businesses would have less to fear. But other decisions are even broader: they hold that even an online-only business, such as Netflix (the defendant in one of the early pro-plaintiff decisions), must make its online presence accessible to users with disabilities.

The Eleventh Circuit Holds That The ADA Does Not Require Online Accessibility

The Gil case was brought against Winn-Dixie Stores, a regional grocery chain. The plaintiff is legally blind, and he alleged that Winn-Dixie’s website was incompatible in some respects with the screen-reader software that he uses to browse the Web. His claim emphasized two aspects of the website: the ability to request prescription refills online, and the ability to link digital coupons to a rewards card for automatic application at the store checkout.

The case went to a bench trial, where Gil prevailed. The district court emphasized that the website is “heavily integrated” with physical Winn-Dixie stores. It issued an order directing Winn-Dixie to conform to website accessibility guidelines issued by a private consortium, known as WCAG 2.0. Because the plaintiff invoked only the federal ADA, there was no separate award of money damages, but Winn-Dixie told the court that changing its website as ordered would cost at least $250,000.

A divided panel of the Eleventh Circuit reversed and held that Winn-Dixie prevailed. The court issued two key holdings. First, the court confirmed that websites are not themselves “places of public accommodation” covered by the ADA. Second, the court held that the connection to Winn-Dixie’s physical stores did not subject the website to the ADA.

Websites are not places of public accommodation: The court found the statutory language “unambiguous and clear.” The statute contains a list of twelve types of public accommodations, which include grocery stores and other “sales or rental establishments.” The court concluded that all are tangible, physical places. “The list covers most physical locations in which individuals will find themselves in their daily lives,” the Eleventh Circuit observed, but “the list does not include websites” or any “intangible places or spaces.” Nor does the interpretive regulation issued by the Department of Justice. 

On this point, the Eleventh Circuit noted the existing disagreement among federal courts of appeals, and it concluded that it was joining the majority and disagreeing with the First and Seventh Circuits.

Websites do not become places of public accommodation through a “nexus” to physical stores: The court concluded that although Winn-Dixie’s website was not fully accessible to visually disabled users like Gil, that did not violate the statute unless the inaccessibility of the website creates an “intangible barrier” to accessing the benefits of physical Winn-Dixie stores. The court saw no such barrier. “Most importantly,” the court noted, the website was not itself a point of sale. And nothing prevented Gil from shopping at the physical store, including using the pharmacy and redeeming coupons (which were the functions he wanted to access through the website).

Gil had argued, consistent with decisions in some other courts, that a website becomes subject to the ADA if it has a “nexus” to a physical store — i.e., if it “augments” the offerings of the physical store. The Eleventh Circuit rejected that much broader rule.

Dissenting, Judge Jill Pryor emphasized that Gil had a different experience in the physical store than a customer who could use the website would have. She would have held that the ADA required the website to be accessible for that reason. The majority rejected that rule; it held that Gil was able to access the services in the store, so his experience was no different than that of a customer without Internet access.

Accessibility Litigation Will Continue, But The Decision May Help Bring Clarity

The decision in Gil is helpful to companies facing accusations that their website violates disability-discrimination laws. Although some courts in other parts of the country will not follow Gil, companies that are willing to litigate rather than settle these cases have a substantial new authority they can raise. It may even increase settlement leverage in some places where the law is uncertain. And this case may give the Supreme Court another chance to settle the issue nationwide: the plaintiff’s counsel have already said that they plan to take the case to the Supreme Court (which refused to take up this issue as recently as 2019).

Here are three considerations that will limit the impact of this decision:

First, even in the Eleventh Circuit, it appears that a website must be accessible if the use of the website is a barrier to accessing the services of a place of public accommodation. So, for example, if the only way to use Winn-Dixie’s brick-and-mortar pharmacy were by submitting prescriptions online, the outcome might well have been different. (An earlier opinion of the Eleventh Circuit had held that because the only way to become a contestant on Who Wants to be a Millionaire? involved a call-in number, the show had to make the dial-in accessible to disabled applicants.)

Second, outside the Eleventh Circuit, some circuits have already reached a different interpretation of Title III. District courts (and state courts) in those jurisdictions will not need to follow Gil. So a defendant sued in a jurisdiction where statutory damages are available (such as California) cannot expect to get out of the case early based on Gil.

Third, Gil was decided following a bench trial, and the court relied substantially on admissions by the plaintiff (e.g., that he had successfully shopped and refilled his prescriptions at Winn-Dixie for years). Even under Gil, plaintiffs may be able to survive a motion to dismiss by alleging the right facts.