U.S. District Court for the Southern District of Florida
Civil Action No. 16-23020-Civ-Scola,
2017 U.S. Dist. LEXIS 90204
June 13, 2017
Keywords: Internet, websites, accessibility, ADA Title III, public accommodation
On April 7, 2021, the U.S. Court of Appeals for the Eleventh Circuit did not find a website to be a “place of public accommodation” under Title III of the Americans with Disabilities Act (ADA). Additionally, the Court held that Winn-Dixie’s website does not constitute an “intangible barrier,” and Gil’s inability to access the website does not violate Title III of the ADA. See: Court Decisions Brief: Gil v. Winn-Dixie (2021).
The Winn-Dixie grocery chain operated a website that was not accessible through assistive technology. This made the site inaccessible to anyone with a visual impairment, including Plaintiff, Gil. In order to be covered by the Americans with Disabilities Act (ADA), the website must either be a “public accommodation” on its own, or must be a service of a public accommodation. Without ruling on whether the website on its own was a public accommodation, the court held that the site was a service of a public accommodation. The retail stores operated by Winn-Dixie were undoubtedly public accommodations, and the website acted as a gateway to the retail stores. Therefore, the website is also covered by the ADA, and must therefore comply with the ADA’s accessibility requirements.
Juan Carlos Gil is a man with visual impairments and cerebral palsy. Gil is legally blind, but is able to use a computer with the aid of JAWS (Job Access With Speech), a popular technology that automatically tells the user what is happening on screen, when they need to enter commands, and so forth.
Winn-Dixie is a regional grocery chain in the Southeast United States. Some of the stores have pharmacies. Gil, who has lived in Miami for 25 years, estimates that he has visited Winn-Dixie stores 30 to 40 times, and last filled a prescription there 2 to 3 years before this suit. Gil testified that, in the past, he would have to go into stores and be assisted by an employee to refill his prescriptions. He reported feeling uncomfortable while doing so, because he was never sure if anyone was around listening to him as he revealed personal medical information to the employee. Gil also testified that, in the absence of a website, the only way he could access coupons was to have a friend read him the newspaper, or ask an employee in the store. He reported being uncomfortable with these interactions as well, because employees would often be annoyed by his request for assistance.
Gil was interested when he learned of Winn-Dixie’s website in 2015. The website advertised access both to coupons and prescription refills, the two things Gil most needed access to. However, when Gil visited the site, he found it to be almost completely inaccessible. While using JAWS, 90% of the site's tabs did not work; subcategories within the site were completely inaccessible, including the store-locater function; and the website was not searchable. The site lacked even an accessibility notice, and had no published plans for updates to its accessibility.
Gil testified that he would return to shopping at Winn-Dixie if the website was accessible to him. He considers protecting his privacy of utmost importance, and because other competitors to Winn-Dixie have functional websites, he has been using them. However, because of Winn-Dixie’s lower prices, Gil testified that he would prefer to use the grocer for his future shopping, so long as it were accessible.
Rodney Cornwell, corporate representative for Winn-Dixie, testified about the chain’s future plans. He said that, although they had no definite plan, they were working on a building an ADA policy for the site and had $250,000 set aside for its accessibility project. He admitted that the current site had not been tested for its use through accessibility software like JAWS.
Chris Keroack, who works for a company specializing in web accessibility, performed a brief audit of the Winn-Dixie site, looking at critical functionality features and the ability of the site to perform even simple tasks. He opined that a few simple modifications to some areas of the site’s source code could fix all accessibility issues on the website. Further, he specified that the Web Content Accessibility Guidelines (“WCAG”) address each of the issues with the site.
The WCAG are a set of guidelines developed by the Web Accessibility Initiative, which is a committee of the World Wide Web Consortium (“W3C”). W3C is a private corporation which functions as the main “standard setting” organization for the internet. Although not themselves legally binding, many of the WCAG criteria have been adopted into U.S. law. The WCAG also offer support to developers, designed to help them meet the guidelines. Because all the accessibility issues were provided for in the WCAG, Keroack opined that the actual total cost of bringing the site into compliance would be around $37,000, much lower than the $250,000 estimate Winn-Dixie was preparing for.
Constitutional standing has 3 elements: 1) the plaintiff has suffered an injury in fact, 2) there is a causal connection between the injury and the conduct complained of, and 3) it is likely that the injury will be redressed by a favorable decision. Further, because Gil also sought an injunction, he had to show a sufficient likelihood that this allegedly unlawful conduct would affect him again in the near future.
The court dispatched with this issue quickly. They held that, under the ADA, so long as he testifies that he intends to visit the premises that gave rise to suit in the near future, injunctive relief could be granted. Because Gil testified that he tried to visit the site in the past and intends to again, he has satisfied the standard for an injunction as well as for part (1) of the standing analysis, injury in fact. Part (2) of the standing analysis is satisfied because the alleged injury, inability to access the website, was directly caused by the alleged harm, inaccessibility of the website. And Part (3) is easily satisfied because if the site is ordered to be accessible, Gil testified that he would shop there again. Therefore, Gil has standing to challenge this claim.
Title III of the Americans with Disabilities Act (“ADA”) prohibits discrimination by the owner of a public accommodation on the basis of a disability. Discrimination includes preventing access to full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of that public accommodation.
The court initially holds that Gil, because of his visual impairment, has a qualifying disability. They further hold that Winn-Dixie’s retail stores are unquestionably public accommodations. This only leaves the question of whether the website itself is a public accommodation; there is no dispute that Gil was denied access to it.
The ADA defines “public accommodation” as a private entity whose operations affect commerce, and enumerates some categories. However, the court notes that there is a split as to whether the ADA limits “public accommodation” to physical spaces. In circuits that require physical spaces, websites can still be considered public accommodations if the “goods and services” provided on it have a close relation to the physical space, i.e. retail store.
The 11th Circuit, where this court is located, has not yet ruled on whether websites, standing alone, are considered public accommodations under the ADA. Courts in the Circuit have held, however, that where a website is wholly unconnected to a physical space, it is not covered by the ADA. On the other hand, if a website is substantially connected to a physical location, and operates as a “gateway” to the physical location of a store, it is considered a “service” of the public accommodation, which is enough to bring it under the umbrella of the ADA.
Winn-Dixie’s website meets these requirements, according to the court. The site is a gateway to the store in that it can be used to fill prescriptions and access coupons. Although Winn-Dixie argues that they have not barred Gil from entry into their physical locations, the court is not persuaded. Because the website is a good, service, facility, and advantage offered by the public accommodation, and is especially important for people with visual impairments, the court ultimately finds that the website is covered by the ADA.
The court held that Winn-Dixie’s website was a service to a public accommodation, which was inaccessible to individuals with visual impairments. Having decided for Gil, the only remaining issue was whether an injunction, to make the website accessible by a certain date, was appropriate in this case.
Injunctive relief is available under the ADA if the discrimination complained of includes a failure to remove architectural barriers, where the removal is readily available. Because the evidence showed that Winn-Dixie was planning to make the website accessible, and that it would likely be less expensive even than they planned for, the court holds that Gil is entitled to injunctive relief. The court therefore orders that, by a date to be agreed upon between Gil and Winn-Dixie, the website shall be made accessible to individuals with disabilities in compliance with the Web Content Accessibility Guidelines 2.0.
Website accessibility is seen as the new frontier of ADA litigation. Many lawsuits have been filed against websites for big and small companies, and like in the case at hand, most circuits have not ruled on the issue. Since the Winn-Dixie decision, the Eastern District of New York has ruled that websites are places of public accommodation, which people with disabilities have a substantive right to access. In Andrews v. Blick Art Materials, LLC, 2017 U.S. Dist. LEXIS 121007 (E.D.N.Y. 2017) the Judge rejected the approach used in Winn-Dixie, and specifically wrote that “rigid adherence to a physical nexus requirement leaves potholes of discrimination in what would otherwise be a smooth road to integration.” Id. At 35.
The court avoided answering some questions by resolving this case in the way they did. Some courts, like the Eastern District of New York above, have held that any website which offers direct sale of goods or services is on its own a public accommodation. This would mean that the site operator wouldn’t even need to have a retail location to be held to the requirements of the ADA. However, Winn-Dixie’s site did not offer direct sale, so the court here may not have been able to rely on that theory. Still, by deciding on the “gateway” theory, there is no suggestion as to whether a site that offers direct sales, but has no retail stores, is a public accommodation in the Southern District of Florida.