Yes, Winn-Dixie Was Reversed!
Earlier today, my friend and former fellow Department of Justice Senior Trial Attorney Marc Dubin sent me a copy of today's decision by the 11th Circuit in Gil v. Winn-Dixie Stores, Inc., 2021 U.S. App. LEXIS 10024 (11th Cir. Apr. 7, 2021). At Converge, we work a lot with Marc. In fact, we even helped some of the attorneys in the Winn-Dixie case avoid basic legal pitfalls. And we gave our former colleagues at DOJ a heads up about the case-- and urged them to get involved (which they did). But, to say that this new opinion is a bombshell is an understatement. This article won't be a detailed legal analysis-- I'll try to keep it brief even though it's of huge legal significance. After all, attorneys like me are going to be debating what this case means for months.
In short, the Eleventh Circuit (remember, that's the Federal appellate court that hears appeals from federal district courts in Florida, Georgia, and Alabama) has made it virtually impossible to bring a web accessibility case unless that website somehow prevented a person with a disability from being able to obtain the goods and services of a place of public accommodation.
Different Approaches to Web Accessibility
As readers of this blog know, there is a split in the Circuits over the question of whether private businesses and other "places of public accommodation" can be sued under Title III of the Americans with Disabilities Act (ADA), if their websites are inaccessible. The question comes down to whether the website is a "place" (or an extension of a "place") of public accommodation, as the ADA and its regulations limit coverage to discrimination by "places of public accommodation." Some courts have read the ADA broadly and noted that the non-discriminatory purpose of the ADA would be best served by avoiding an overly-literal reading of the statute-- thus even a purely online company could be sued. This approach is taken by:
- First Circuit (which includes the Federal district courts in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island),
- Seventh Circuit (Illinois, Indiana, and Wisconsin), and
- Second Circuit (Connecticut, New York, and Vermont)
(I lump the Second Circuit in here even though they take a slightly different approach to get to the same basic answer).
On the other hand, a more conservative approach is the "nexus" approach, which requires some kind of connection or "nexus" between a website and a physical place of public accommodation. A "nexus" could exist, for instance, if online purchases could be returned at physical stores or if online coupons could be redeemed in a physical store. This approach is taken in
- Third Circuit (federal district courts in Delaware, New Jersey, Pennsylvania, and the Virgin Islands),
- Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee),
- Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Marianas Islands), and
- (at least until today) Eleventh Circuit (Alabama, Florida, and Georgia).
Some Background on Gil v. Winn-Dixie
Gil v. Winn-Dixie, 257 F.Supp.3d 1340 (S.D. Fla. 2017) was an important decision by the U.S. District Court for the Southern District of Florida because it was one of the first (and only) web accessibility cases to make it all the way to trial. And the district court's ruling appeared quite well-reasoned and was a definite win for people with disabilities. It was also the first decision in which a court stated that redesigning a site to comply with the Web Content Accessibility Guidelines (WCAG) was an appropriate remedy. In this case, Juan Carlos Gil was a regular shopper at Winn-Dixie grocery stores, but couldn't use the store's website. He didn't use the website to buy groceries (Winn-Dixie's website doesn't offer this feature), but he did use it to locate nearby Winn-Dixie stores and for refilling his medical prescriptions that he picked up at a Winn-Dixie store. He also used the website to find local Winn-Dixie stores through its store locator feature. And, because he couldn't access Winn-Dixie's website (because it was unusable to his screen reader), the court found that his rights under the ADA were violated. Unfortunately for Mr. Gil, Winn-Dixie then appealed the district court's decision-- and he was unlucky enough to have his case heard by a much more conservative bench (U.S. Circuit Judge Elizabeth Branch who wrote the opinion was appointed to the court by President Donald Trump in 2017).
The Eleventh Circut Opinion
The Eleventh Circuit's opinion hinged on the court's earlier decision in Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002). This is another classic case in this area--even though it wasn't a web accessibility case. In Rendon, a contestant for the television show "Who Wants to Be a Millionaire" sued the network because the telephone-based screening process used to decide who could be a participant on the show was inaccessible to deaf users. While other district court opinions focused on Rendon as endorsing the nexus standard used in other Circuits, the Winn-Dixie opinion used it to drive a wedge between the Eleventh Circuit and other circuits by stating that Rendon never adopted the nexus requirement because the Rendon opinion never used the word "nexus".
The Eleventh Circuit went on to distinguish Rendon because the telephone screening process was essentially the only way to get on the television show; by contrast, Winn-Dixie's website never prevented Mr. Gil from access to a physical Winn-Dixie store. The Court did not seem bothered by the extra hassle and inconvenience that Mr. Gil experienced by having to travel to a Winn-Dixie store to first request a prescription refill and then return again to pick it up. It also ignored the fact that Mr. Gil couldn't independently learn about coupons and sales at the store. While any other court would have likely found that these extra burdens would create a real barrier for a person with a disability, the Eleventh Circuit simply dismissed these burdens as "relevant but not dispositive" of whether there was discrimination.
To better understand the Eleventh Circuit's opinion, it helps to also look back at the district court opinion. The district court (perhaps recognizing the Eleventh Circuit's potential to go beyond the standard "nexus" formulation) stated that,
The Court need not decide whether Winn-Dixie's website is a public accommodation in and of itself, because the factual findings demonstrate that the website is heavily integrated with Winn-Dixie's physical store locations and operates as a gateway to the physical store locations. Although Winn-Dixie argues that Gil has not been denied access to Winn-Dixie's physical store locations as a result of the inaccessibility of the website, the ADA does not merely require physical access to a place of public accommodation. Rather, the ADA requires that disabled individuals be provided "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . ." 42 U.S.C. § 12182(a). The services offered on Winn-Dixie's website, such as the online pharmacy management system, the ability to access digital coupons that link automatically to a customer's rewards card, and the ability to find store locations, are undoubtedly services, privileges, advantages, and accommodations offered by Winn-Dixie's physical store locations. These services, privileges, advantages, and accommodations are especially important for visually impaired individuals since it is difficult, if not impossible, for such individuals to use paper coupons found in newspapers or in the grocery stores, to locate the physical stores by other means, and to physically go to a pharmacy location in order to fill prescriptions.
Gil v. Winn-Dixie, 257 F. Supp. 3d 1340, 1349 (S.D. Fla. 2017)(emphasis added). Comparing the district and appellate opinions provides a little more clarity. Yes, the website had an online pharmacy and coupons, but Mr. Gil somehow managed to use the physical pharmacy and paper coupons nonetheless. Yes, the website had a store locator, but Mr. Gil somehow managed to find his way to a Winn-Dixie store anyways. In each case, Mr. Gil was able to overcome these barriers. To the district court, a "gateway" barrier is one that affects access to the same goods and services of a Title III place of public accommodation. By contrast, to the Eleventh Circuit, a gateway barrier must be one that completely denies access to those same goods and services. In other words, in order for Mr. Gil to prevail, the Eleventh Circuit required him to show that Winn-Dixie's website was inaccessible and:
- Winn-Dixie required pharmacy customers to use the online pharmacy to place orders for pickup at physical stores,
- coupons were only available online and other forms of coupons were not recognized at Winn-Dixie stores, or
- Mr. Gil could not find a physical store because locations were only listed online.
Few, if any, businesses operate this way. Worse yet, this is a terrible opinion for people with disabilities because it ignores the fact that discrimination includes a lot more than complete denial of access to the goods, services, and benefits of a place of public accommodation.
Where Does Winn-Dixie Leave Us?
(I originally tried to make sense of this opinion and articulate a new standard for what constitutes discrimination in web accessibility cases in the Eleventh Circuit (which I called "nexus plus"). But, in reality, that new standard is simple: in the Eleventh Circuit, a website has to completely deny a person with a disability access to a place of public accommodation.
But the Eleventh Circuit is just plain wrong. Discrimination takes many forms apart from simply complete denial of access. Over fifty years of civil rights case law makes this point clear. While I can fully understand the court's eagerness to limit web accessibility lawsuits (which have been clogging up the dockets of the Southern District of Florida where most web accessibility lawsuits have historically been filed), I think it has only made the job for district court harder. As my friend Jack McElaney reminded me, this opinion will likely only embolden the disability community.
The problem here is obvious: the courts are not the appropriate avenue to deal with the issue of web accessibility lawsuits. It's simply too easy for plaintiff attorneys to bring these cases. To make matters worse, many less-scrupulous attorneys use automated testing tools to screen hundreds of "target" companies for nominal serial plaintiffs-- and then file dozens of virtually-identical lawsuits at a time. On the other hand, there are also honest people with disabilities who are facing real discrimination through websites and who are fighting to have their needs met. Yet, it's almost impossible to distinguish good plaintiffs from bad plaintiffs under the existing legal framework-- and restricting bad plaintiffs just makes it impossible for the good plaintiffs to vindicate their rights.
The answer, of course, is that it is for the Department of Justice to provide clarity. I think everyone would agree that, without clear guidance in regulations, many businesses will just pretend that they have no obligations for their website-- and this just creates a perfect environment for unscrupulous plaintiff attorneys. I am disappointed that my colleagues at the Justice Department couldn't get the web accessibility regulation published during the six years they had to work on it (before the Trump Administration shelved the project completely). Instead, DOJ just issued ANPRM and ANPRM asking the public for more guidance-- almost setting up the issue for the plaintiff bar. It was clear to everyone after 2014 that web accessibility litigation was going to be a really big problem, yet DOJ just continued to hem and haw, waver and worry. Not all regulations are bad and this one had universal support from the disability and business communities. It was needed. It was supported. It went nowhere.
And all of that led us to thousands of web accessibility cases-- and ultimately the Eleventh Circuit opinion in Gil v. Winn-Dixie that tries to slam the door in the face of the disabled. It's a terrible decision for everyone, but especially people with disabilities. Let's hope that DOJ gets its act together in the next few years and gives us this sorely-needed guidance.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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