Labor & Employment Law Daily Grocery store website not ‘a place of public accommodation’ under the ADA
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Monday, April 12, 2021

Grocery store website not ‘a place of public accommodation’ under the ADA

By Ronald Miller, J.D.

The statutory language of Title III defining “public accommodation” is unambiguous and clear, and describes public accommodations as tangible, physical places.

In a non-employment case, a divided Eleventh Circuit held that a grocery store’s website was not “a place of public accommodation under the ADA.” The appeals court held that the absence of screen reader software on Winn-Dixie’s website did not act as an intangible barrier that resulted in a vision impaired customer being discriminatorily “excluded, denied services, segregated or otherwise treated differently than other individuals” in the physical stores. In the absent of congressional action that broadens the definition of “places of public accommodation” to include websites, the appeals court declined to extend ADA liability to the facts of this case where there was no physical barrier to the access. Judge Pryor filed a separate dissenting opinion (Gil v. Winn Dixie Stores, Inc., April 7, 2021, Branch, E.).

Website accessibility. Winn-Dixie owns and operates grocery stores in the Southeastern United States. It operates a website but does not offer any sales directly through the site. The plaintiff is a long-time Winn-Dixie customer who is legally blind. Upon learning of the existence of Winn-Dixie’s website, he visited the site and discovered that it was incompatible with screen reader software, which he uses to access websites and vocalize the site’s content.

On July 1, 2016, the plaintiff brought this action under Title III of the ADA, alleging that he was a Winn-Dixie customer, and that he was “interested in filling/refilling pharmacy prescriptions on-line,” but was unable to access the website because it was incompatible with screen reader software. He alleged that the website itself was “a place of public accommodation under the ADA,” and that the website had “a direct nexus to Winn Dixie grocery stores and on-site pharmacies.”

The plaintiff requested an order requiring Winn-Dixie to update its website “to remove barriers in order that individuals with visual disabilities can access the website to the full extent required” by Title III.

Integrated website. Winn-Dixie admitted that “its physical grocery stores and pharmacies are places of public accommodation,” but denied that its website was a place of public accommodation and in violation of the ADA. Winn-Dixie filed a motion for judgment on the pleadings. The district court denied the motion for judgment on the pleadings, reasoning that the Eleventh Circuit’s ruling in Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002) extended the ADA’s coverage to “intangible barriers” that restrict a disabled person’s enjoyment of the “goods, services, and privileges” of a public accommodation.

After a bench trial, the district court ruled in favor of the plaintiff, finding that Winn-Dixie had violated his rights under Title III of the ADA. The district court found that the website was “heavily integrated” with Winn-Dixie’s physical stores—so much so that it “operates as a gateway to the physical store locations.” Thus, it held that the fact that the website is “inaccessible to visually impaired individuals who must use screen reader software” means that Winn-Dixie has violated the ADA. The district court issued an injunction requiring, among other things, for Winn-Dixie to make its website accessible to individuals with disabilities. Winn Dixie appealed.

Standing. As an initial matter, the appeals court determined that the plaintiff had standing to bring this case. It found that the difficulties caused by his inability to access much of the Winn-Dixie website constituted a “concrete and particularized” injury that is not “conjectural” or “hypothetical,” and will continue if the website remains inaccessible.

Website as public accommodation. The appeals court next turned to the merits of the case. this case presented two primary issues: (1) whether Winn-Dixie’s website was a place of public accommodation in and of itself, such that its inaccessibility violated Title III; and (2) if it is not a place of public accommodation, whether the website otherwise violated Title III.

As to whether the website was a place of public accommodation under Title III of the ADA, the appeals court observed that the statute, 42 U.S.C. § 12181(7), provides an expansive list of physical locations which are “public accommodations,” including a “grocery store,” and covers most physical locations in which individuals will find themselves in their daily lives. However, the list does not include websites.

The statutory language of Title III defining “public accommodation” is unambiguous and clear, and describes public accommodations as tangible, physical places, explained the court. Thus, the Eleventh Circuit held that websites are not a place of public accommodation under Title III, so the plaintiff’s inability to access and communicate with the website itself was not a violation of Title III.

Intangible barrier. But that did not end the court’s analysis, as the plaintiff asserted that even if websites were not declared to be places of public accommodation, the ADA also forbid “intangible barriers” that prevent an individual with a disability from fully and equally enjoying the goods, services, privileges, or advantages of a place of public accommodation. The plaintiff argued that the website violated Title III because its inaccessibility served as an intangible barrier to his “equal access to the services, privileges, and advantages of Winn-Dixie’s physical stores,” which are a place of public accommodation.

Contrary to the ruling in Rendon, the Eleventh Circuit found that Winn Dixie’s limited use website, although inaccessible by individuals who are visually disabled, did not function as an intangible barrier to an individual with a visual disability accessing the goods, services, privileges, or advantages of Winn-Dixie’s physical stores. An important distinction was that the website did not function as a point of sale. All interactions with Winn-Dixie which can be initiated on the website must be completed in-store. And nothing prevents the plaintiff from shopping at the physical store. Accordingly, the appeals court held that Winn- Dixie’s website did not constitute an “intangible barrier” to the plaintiff’s ability to access and enjoy fully and equally “the goods, services, facilities, privileges, advantages, or accommodations of” a place of public accommodation in violation of Title III of the ADA.

Thus, the judgment of the district court was vacated and remanded.

Dissent. In a dissenting opinion, Judge Pryor pointed out that Winn-Dixie’s customers could obtain the in-store prescription and coupon benefits only by accessing Winn-Dixie’s website. But visually-impaired customers could not access the website because it was incompatible with screen-reading technology that would enable them to use it. The dissent argued that the ADA is violated when a place of public accommodation offers valuable in-store benefits to customers through a website that is inaccessible to individuals with visual disabilities. According to the dissent, the majority opinion gives stores and restaurants license to provide websites and apps that are inaccessible to visually-impaired customers so long as those customers can access an inferior version of these public accommodations’ offerings. Thus, the dissent would hold that this inferior treatment amounted to disability discrimination by the operator of a place of public accommodation under Title III of the ADA.

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