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Case:   Gil v. Winn-Dixie Stores, Inc., No. 17-13467 issued April 7, 2021 (full text of the opinion here)

Court: United States Court of Appeals for the Eleventh Circuit

Circuit Judges: Elizabeth Branch, Danny Reeves (United States District Chief Judge for the Eastern District of Kentucky, sitting by designation) (majority); Jill Pryor (dissent)

Lower Court: U.S. District Court for the Southern District of Florida, case no. 1:16-cv-23020-RNS (full text of the opinion here)

Trial Judge: Robert N. Scola

Following my recent post on general defensive strategies under Title III of the Americans With Disabilities Act (“ADA” or the “Act”), 42 U.S.C. ch. 126 §12181 et seq., the U.S. Court of Appeals for the Eleventh Circuit dealt a major blow to Title III plaintiffs hoping to capitalize upon the increasing prevalence of litigation over alleged website barriers. The Gil decision vacated the District Court’s judgment entered in favor of the Plaintiff as a result of Winn-Dixie’s website lacking compatibility with screen reader software.

I have mixed feelings. Having successfully defeated several Title III website claims, I applaud the Gil majority’s clear intent to limit the scope of the Act’s reach to physical places. This will effectively reduce the amount of claims filed in bad faith and should eliminate (at least within the Eleventh Circuit) what has become a racket amongst many plaintiffs’ attorneys. However, Judge Pryor authored a compelling dissenting opinion which relies upon statutory interpretation to convincingly argue the Act’s applicability to websites connected to physical places of public accommodation. Below I will attempt to demonstrate the strengths and weaknesses of both sides of the opinion, while ultimately concluding that the majority got it right for the wrong reason.

The Plaintiff, who is legally blind, successfully argued at the trial level that Winn-Dixie violated Title III – applicable to “places of public accommodation” – because Mr. Gil could not avail himself of particular features offered through the grocery chain’s website. Specifically, Gil was unable to refill prescriptions online or to link digital coupons to his rewards card because Winn-Dixie’s website was largely incompatible with screen reader software. Since a website must be developed with screen reader compatibility in mind for the software to successfully verbalize text on each page, Gil’s software could not read most of the text on Winn-Dixie’s website and he was thereby prevented from using the online prescription refill or digital coupon functionality. Notably, there was no dispute at trial that Gil had previously shopped at Winn-Dixie’s physical locations for more than a decade; he claimed to have decided against further patronizing the grocery chain once he discovered that he could not access its website.

Judge Scola acknowledged that courts were split on whether the ADA’s scope is limited only to physical places. He ultimately found, however, that Winn-Dixie’s website was “heavily integrated with” and “operates as a gateway to” the grocery chain’s physical stores. He therefore declined to decide whether the website itself could be considered a “place of public accommodation” subject to Title III. Based upon then-prevailing Ninth and Eleventh Circuit Title III law (including Rendon v. Valleycrest Prods., Inc., 294 F.3d 1279 (11th Cir. 2002)), the District Court instead concluded that the Act applied to intangible barriers connected to tangible public accommodations (commonly referred to as the “nexus” theory: if an intangible barrier –such as a website incompatible with screen reader software – shares a sufficient nexus with a physical place of public accommodation, a Title III violation exists). Reasoning that the online prescription refill and digital coupon functionality of the website were merely extensions of services, privileges or advantages offered through Winn-Dixie’s stores, Judge Scola determined that the grocery chain had discriminated against Gil by failing to make its website compatible with screen reader software. The District Court thus entered an injunction requiring Winn-Dixie to update and maintain its website in a compliant fashion, which the grocery chain timely appealed.

After an agonizing, nearly four-year wait (Winn-Dixie filed its appeal back in 2017), the Eleventh Circuit finally vacated the trial court’s judgment in favor of Gil in an opinion released on April 7, 2021. The majority began its merits analysis by quickly disposing of the notion that a website itself could be considered a place of public accommodation subject to Title III. Finding the pertinent statutory language “unambiguous and clear”, the Circuit Court concluded that Title III covers only those public accommodations which are “actual, physical places.”

The majority then turned to the more subtle issue as to whether Winn-Dixie’s website creates intangible barriers actionable under the ADA as a result of the connection between any such barriers and those services, privileges or accommodations on offer at the grocery chain’s physical locations. It began by acknowledging the Eleventh Circuit’s prior decision in Rendon v. Valleycrest Prods., Inc., relied upon by the District Court, wherein Title III was determined to prohibit an intangible barrier (a telephone hotline for contestants which was inaccessible to disabled persons) that blocked access to a physical place of public accommodation (a televised, in-studio game show – “Who Wants to be a Millionaire?”)

However, the Gil majority identified a “fundamental level” at which Winn-Dixie’s “limited use website” differed from the contestant hotline in Rendon: whereas the telephone hotline was the “sole access point” for contestants to vie for a spot on the game show, Winn-Dixie’s website did not allow online purchases and instead only offered functionality (i.e., prescription refills and digital coupons) which required customers to ultimately transact business within the physical store locations. Because disabled customers such as Gil were still able to refill prescriptions and use paper coupons inside of Winn-Dixie’s physical locations, the Gil majority concluded that the website could not be considered an intangible “barrier” to a place of public accommodation.

By so concluding, the majority expressly rejected the “nexus” theory relied upon by the District Court and argued by Gil to have been adopted in Rendon. Reasoning that “no basis” for the theory existed in the text of the statute or Eleventh Circuit precedent, the majority instead determined that the ADA only required public accommodations to take those steps deemed “necessary” to ensure an experience for the disabled that was comparable to that of people without disabilities. Stated differently, the fact that the functionality of Winn-Dixie’s website enhanced and augmented a customer’s patronage of the grocery chain’s physical stores (i.e., by expediting prescription refills and digital coupon redemption) was not enough to establish a Title III violation; only those intangible barriers entirely precluding a particular service to the disabled (such as the contestant telephone hotline in Rendon – the “sole access point” to the in-studio game show) will trigger liability.

Gil  represents a seismic shift in Eleventh Circuit Title III jurisprudence. Website cases now face a new hurdle: the need to demonstrate that the benefit or privilege offered through the site is unavailable by other means. Moreover, collateral benefits like increased convenience (linking digital coupons to a rewards card) or time savings (online prescription refills) don’t count; only where the underlying benefit or privilege itself (coupons or prescriptions) is completely precluded will an intangible barrier actionable under Title III be found. Whereas most contemporary commercial websites which are connected to physical places of public accommodation (such as grocery stores, restaurants or hotels) offer informational and convenience advantages without being the “sole access point” for the benefits or privileges on offer, the Gil decision itself will likely present an impenetrable barrier for would-be Title III website plaintiffs.

The dissent, however, holds nothing back as it attempts to, and largely succeeds in, dismantling the majority’s reasoning. It begins with an examination of the relevant statutory provision,42 U.S.C. §12182(b)(2)(a)(iii), which defines “discrimination” as including:

“a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden” (emphasis added)

With due regard for Title III’s applicability only to physical places, Judge Pryor concludes that the services offered through Winn-Dixie’s website fundamentally enhance the in-store shopping experience so as to comfortably fall within the statute’s mandate. She rejects, as contrary to the above-cited statutory provision, the majority’s conclusion that Gil’s ability to avail himself of in-store prescription refills and paper coupon redemption amounts to an experience comparable to that of a sighted person using the grocery chain’s website in advance of a visit to one of its stores. Reasoning that Title III’s broad prohibition on discrimination preventing “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation” applied to the “privileges” and “advantages” offered via the prescription refill and digital coupon functionality of Winn-Dixie’s website, the dissent determines that the District Court correctly found the grocery chain to be in violation of the statute.

Judge Pryor also persuasively challenges the majority’s reliance upon Rendon and Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir.), cert. denied, ––– U.S. ––––, 140 S. Ct. 122, 205 L.Ed.2d 41 (2019) (reversing dismissal of Title III complaint premised upon inaccessible website and mobile app allowing pizza to be ordered for delivery or pick-up) to conclude that a violation based upon an intangible barrier occurs only where a “sole access point” or point of sale is blocked or prevented. The dissent correctly emphasizes that neither case established a bright line rule requiring the total preclusion of a point of access or sale to state a Title III claim, and the majority is therefore mistaken to so narrowly construe the statute and precedent.

Judge Pryor is of course correct in this regard, as evidenced by the Eleventh Circuit’s own unpublished decision in Haynes v. Dunkin’ Donuts LLC, 741 Fed.Appx. 752 (11th Cir. 2018) (full text of the opinion here). Haynes, like Gil, involved a Title III website claim premised upon a lack of compatibility with screen reader software. Mr. Haynes alleged an inability to access certain features available on Dunkin’ Donuts’ website including a store locator and the ability to purchase gift cards, as well as general information about the services and accommodations on offer at the food chain’s physical stores. The District Court dismissed the claim for failure to allege a “nexus” between those stores and the website’s features. The Circuit Court unanimously reversed the dismissal, reasoning that “the website is a service that facilitates the use of Dunkin’ Donuts’ shops, which are places of public accommodation.”

Pursuant to Eleventh Circuit Rule 36-2, unpublished decisions like Haynes are not considered binding precedent but may be cited as persuasive authority. Haynes was therefore an important (even if non-binding) indication of the Eleventh Circuit’s stance towards intangible barriers under Title III: the decision seemingly validated the “nexus” theory by concluding that an inability to access online privileges or services tied to physical accommodations was sufficient to state a valid claim. It’s true that one of the alleged barriers in Haynes was an inability to purchase gift cards through the website – which could be considered a “point of sale” similar to the website and mobile app at issue in Robles (and recognized by the Gil majority to be one of only two restrictive grounds sufficient for finding an intangible Title III barrier). But the Haynes Court also acknowledged the store locator feature as well as “information about … the goods, services, facilities, privileges, advantages or accommodations of” Dunkin’ Donuts’ shops as equally-sufficient grounds – neither of which pertain to a point of sale or sole access as were found to be dispositive in Gil. Thus, anyone expecting the Eleventh Circuit to affirm in Gil based upon its earlier decision in Haynes was likely shocked by the Circuit Court’s about-face.

In terms of whether a website connected to a place of public accommodation can be an intangible barrier triggering Title III liability, the Gil dissent has the better analysis. The relevant statutory language is amply broad enough to encompass time-saving, convenience and informational advantages or services offered through a physical accommodation’s website as a basis for discrimination to the extent such features are inaccessible. The Gil majority’s narrow focus upon points of sole access or sale as the only grounds for finding an intangible barrier is not readily supported by Rendon or Robles. So why is Gil’s holding nevertheless correct despite the majority’s flawed rationale?

The answer results from the dissent’s reliance (like that of the District Court who ruled in Gil’s favor) upon the incompatibility of Winn-Dixie’s website with screen reader software as a basis for finding the existence of an intangible barrier. The relevant statutory provision – 42 U.S.C. §12182(b)(2)(a)(iii) (quoted above) – provides that discrimination actionable under Title III occurs only where there is an absence of “auxiliary aids and services”. Mr. Gil alleged no such violation; he claimed only that Winn-Dixie failed to make its website compatible with screen reader software and that he was unable to access the services, privileges and advantages offered through the website as a result of such incompatibility.

Screen reader software, however, is just one among any number of “auxiliary aids and services” for which places of public accommodation have discretion under the Act to choose to implement depending upon the particular circumstances. See, e.g., 28 C.F.R. §36.303(b):

“Examples. The term ‘auxiliary aids and services’ includes- (2) Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision …” (emphasis added)

As per the above regulation, screen reader software is merely one example of an auxiliary aid and service. Places of public accommodation, such as Winn-Dixie, are otherwise permitted to rely upon “other effective methods” of delivering visual materials to the visually impaired. Indeed, subsequent portions of the cited regulation emphasize this. See 28 C.F.R. §36.303(c)(1)(ii):

“(1) A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. …(ii) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” (emphasis added)

Accordingly, Winn-Dixie would have been well within its rights under the ADA to offer, for example, a staffed telephone hotline to assist the visually impaired with any services available via the website which may be inaccessible due to screen reader incompatibility. The statutory trigger for liability turns not upon whether any one particular auxiliary aid or service is offered; it is instead dependent upon whether any auxiliary aids and services are offered. This is because only an absence of auxiliary aids and services violates §12182(b)(2)(a)(iii).

So the Gil decision correctly reversed the District Court’s judgment in favor of the Plaintiff for the incorrect reason. As the dissent astutely demonstrates, Title III’s provisions may fairly be read to encompass intangible barriers relating to convenience or time-savings privileges offered by an accommodation’s website. But Mr. Gil was certainly not entitled to a judgment merely because Winn-Dixie’s website did not work with his screen reader software.

Ultimately, the Gil decision – despite its questionable analytical underpinnings – will protect public accommodations within the Eleventh Circuit from vexatious Title III website claims.