The Gil case is unlikely to slow down filings of ADA website cases nationally, since the law is more favorable to plaintiffs outside the Eleventh Circuit footprint. 

Over two years after hearing oral arguments, the Eleventh Circuit Court of Appeals finally issued an opinion in Gil v. Winn-Dixie, Case No. 17-13467, overturning the Florida federal district court’s finding that the grocery store chain violated Title III of the Americans with Disabilities Act (ADA) by having an inaccessible website. In the 67-page decision, the Court of Appeals held that “websites are not places of public accommodation” under the ADA and that the Winn-Dixie website was not an “intangible barrier” to goods, services, privileges and advantages of Winn-Dixie’s physical stores.

The 2-1 decision vacates the district court’s 2017 ruling that Winn-Dixie violated the ADA because its website did not offer a visually impaired customer the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” that it provides to other customers. The plaintiff, Juan Carlos Gil, argued that he had intended to order prescriptions and download store coupons, but was unable to do so because his screen reader software was incompatible with the Winn-Dixie website. In response to Gil’s claim, Winn-Dixie asserted that the ADA did not apply to its website because it is not a physical “place” of public accommodation and that Gil was still able to access goods and services at Winn-Dixie’s actual brick-and-mortar stores. 

Following trial, the district court held that the Winn-Dixie website was not accessible to visually impaired customers who use screen reader software, in violation of the ADA. Further, the district court held that, because the website was “heavily integrated” with Winn-Dixie’s brick-and-mortar stores, and acted as a “gateway” to the actual stores, the court was not required to determine whether the website was actually covered by the ADA. Pursuant to the district court’s order, Winn-Dixie was required to bring its website into compliance with the Web Content Accessibility Guidelines Level 2.0, which are industry-created―and widely accepted―website accessibility guidelines.

Winn-Dixie then appealed to the Eleventh Circuit, which held that the ADA definition of “public accommodation” is clear and unambiguous and provides a broad list of physical locations that are public accommodations―a list that does not include websites. Pointing to the statutory language, the court held that: 

All of these listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed. Thus, we conclude that, pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places.

Gil, however, argued that the ADA forbids not just physical barriers but also “intangible barriers.” The court agreed that the website would, in fact, violate the ADA if it was an “intangible barrier” to Gil’s access to the goods, services, privileges or advantages of Winn-Dixie’s brick-and-mortar stores. However, the court held that, unlike many other public-facing websites, Winn-Dixie’s website, at least as of when the case was filed in 2017, was designed for “limited use.” The court distinguished this case from Rendon v. Valleycrest Productions, Ltd., where the producers of “Who Wants to be a Millionaire?” were held to have violated the ADA because the phone system used by the show’s producers to screen potential contestants was the “sole access point for individuals to compete for the privilege of being a contestant on the game show” and thus “acted as an ‘intangible barrier’ that prevented the plaintiffs from ‘accessing a privilege’” of a physical place of public accommodation. The Court of Appeals distinguished Gil’s case from Rendon, and held that Winn-Dixie’s website was not an intangible barrier to an individual accessing the goods, services, privileges or advantages of Winn-Dixie’s physical stores because its website had “limited functionality” and was “not a point of sale.” All purchases from Winn-Dixie had to be made in the physical store, and there were no barriers preventing Gil from shopping at the brick-and-mortar stores. In a footnote, the Court of Appeals made clear that its decision on the “intangible barrier” argument was based on “unique facts of this case,” presumably the “limited use” of Winn-Dixie’s website.

The Gil case is unlikely to slow down filings of ADA website cases nationally, since the law is more favorable to plaintiffs outside the Eleventh Circuit footprint (Florida, Georgia and Alabama). Plaintiffs’ lawyers will simply choose to file the cases in other, more favorable venues.

However, the decision is good news for businesses that operate only in the Eleventh Circuit, particularly those with “limited use” websites similar to Winn-Dixie’s. Since the vast majority of grocery stores and retailers these days do actually sell goods and services on their websites, it is possible that plaintiff’s attorneys will continue filing ADA website cases in the Eleventh Circuit in hope of convincing a court that Gil applies only to its “unique facts.” It is also possible that the conflict between circuits that this decision creates will increase the likelihood that the Supreme Court of the United States will finally address the issue.

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