In 2017 the first federal court web accessibility trial in the United States was held in a Miami Florida courtroom. When the trial was over, the judge ruled that the Winn-Dixie grocery chain violated the Americans with Disabilities Act by maintaining an inaccessible website.

Winn-Dixie appealed the ruling. More than three years later, on April 7, 2021 the U.S. Court of Appeals for the 11th Circuit finally issued its Opinion.

The appeals court disagreed with the Miami judge’s ruling. In a narrowly written opinion based on “unique facts” of the case, the Court said that Winn-Dixie’s inaccessible website was not a violation of the Americans with Disabilities Act.

The 32 page Opinion applies only to cases brought in federal court in Florida, Georgia, and Alabama under the Americans with Disabilities Act. A strong 34 page dissent disagreed with the Opinion. (Cases in the US federal courts of appeals are heard by three judges called a “panel.” Here, two of the three judges on the panel thought Winn-Dixie’s inaccessible Winn-Dixie website was o.k. One judge agreed with the trial judge’s original order was correct.)

• Read the Eleventh Circuit Opinion in the Winn-Dixie Case (PDF). The dissent starts on page 33.

In my view (and the view of the dissenting judge), the Opinion ignores the language and intent of the ADA, the rights of disabled people, and the reality of the 21st century digital world (both pre- during- and post-pandemic). The opinion cares nothing about the privacy, independence, or convenience of disabled people.

As disappointing as this opinion is, though, it is important to keep it in perspective. This article lists several factors to keep in mind when considering the opinion and its impact on web accessibility in the United States. My conclusion?

If you own a business with a website, this Opinion should not deter you from designing, building, and maintaining a website that works for everyone. Unless you are planning a separate website in Georgia, Alabama, and Florida, and your only goal is not getting sued in federal court in those states, inclusive design should still be your guiding star, WCAG 2.1 AA your development standard, and usability testing your best practice, all with the involvement of disabled people at every turn.

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Simple facts and a wrong result about a grocery store website

The facts of the case were simple: Juan Gil is a blind Winn-Dixie customer who uses a screen reader. He wanted to use the Winn-Dixie website to order prescriptions that he would then pay for and pick up at the Winn-Dixie pharmacy. As the dissenting judge wrote, the Winn-Dixie website enabled customers to “obtain express prescription refills with greater privacy.”

Mr. Gil also wanted to use the website to link manufacturers’ coupons electronically to his Winn-Dixie customer rewards card for more convenient checkout. Because the site wasn’t accessible he had to use paper coupons he could not see.

There was no disagreement about the quality of the website. The majority opinion recognized that the Winn-Dixie website was “inaccessible by individuals who are visually disabled.” Still, through convoluted reasoning the majority ruled that the ADA did not give Mr. Gil the right to an accessible website.

Sighted people did not have the delay and inconvenience of using paper coupons or the additional privacy risks of waiting in the store while a prescription was filled. In the court’s view it was o.k. that blind people did. (The original trial was before the pandemic, and the court did not consider the health and safety risks of additional time in the store.)

The Winn-Dixie opinion is about how Title III of the ADA applies to websites. It has nothing to do with state and local government websites (title II) or the digital inclusion rights of employees under Title I. And as focused as the opinion is on private businesses, it is unclear how this same judge would rule on an ADA case about a title III entity like a private educational institution (though for the reasons below, I certainly hope she doesn’t get the chance).

The Opinion may not be the last word in the case

There are several strategies to get a different result in the Winn-Dixie case. Mr. Gil’s lawyers could ask for a rehearing. They could also ask for a new hearing in front of all twelve judges of the 11th Circuit. This is called an “en banc” hearing, though why the US court system uses a french term for this I have no idea.

A judge in the 11th Circuit who was not part of the original panel can also request an “en banc” hearing. On April 9, two days after the opinion was issued, an anonymous judge did just that. This request will trigger a vote on whether all 12 judges agree to the new hearing.

And of course, there is always the possibility of the U.S. Supreme Court. There is no automatic right to get a case heard by the Supreme Court. Whether the Winn-Dixie Opinion — either the current one or any opinion after an en banc hearing — would be taken up by the Supreme Court (or whether it is even a good idea to try) remains to be seen.

The Opinion may also not be the last word because it may lead Congress or the United States Department of Justice to clarify the ADA’s application to websites. A bill pending in Congress already claims to do that but, as I’ve written, actually limits digital rights of disabled people.

Not being an appellate litigator, a regulator, or a legislative expert, I won’t speculate on what might happen or when. I will try to exercise the Structured Negotiation quality of patience as I wait and see what happens. (I’ll update this post with new developments.)

The Opinion only applies to certain ADA cases in one of twelve United States Circuit Courts of Appeals

Even if the opinion sticks, its application is limited. The United States federal court system is divided into twelve parts, called circuits. Each circuit includes one or more of the fifty states and in the U.S. and the District of Columbia.

The Winn-Dixie Opinion comes out of the Eleventh Circuit. The Eleventh Circuit includes Georgia, Florida, and Alabama. The Winn-Dixie opinion is only binding in ADA cases in the federal courts in those states.

The Eleventh Circuit is one of the two most conservative circuits in the federal court system (the other is the fifth Circuit which includes Texas, Mississippi, and Louisiana). The Judge who wrote the Opinion is named Elizabeth Branch. In 2020 she was featured in a Guardian article titled “Meet some of Trump’s most conservative judicial picks”

Read my companion article about the judge titled Winn-Dixie and Voting Rights: A Judge On a Mission to Eliminate Civil Rights.

This one opinion does not affect federal courts in other circuits, and does not define state or local law anywhere, even in the three states in the 11th Circuit. The Opinion also does not impact rights of disabled federal employees living in Florida, Georgia, or Alabama under Section 508 of the Rehabilitation Act, or any other federal laws impacting the digital space. As noted above, it is only about one part of the Americans with Disabilities Act.

For all these reasons I agree with these statements from lawyers I respect who handle web accessibility cases for the defense:

[w]hile the Winn Dixie decision makes the Eleventh Circuit a less attractive venue for plaintiffs seeking to file website accessibility lawsuits than before, such plaintiffs can always choose to file in a different circuit where the precedent is more favorable. Thus, we do not believe this decision will have much impact on the number of website accessibility lawsuits filed. Seyfarth Shaw adatitleiii Winn-Dixie post

Ultimately, while this decision is sure to garner a significant amount of coverage, and does certainly make it harder to bring website accessibility claims under the ADA in the Eleventh Circuit, for the near-term future, it is unlikely to have a significant impact on this area of the law at a national level.Epstein Becker Green Winn-Dixie post

The Winn-Dixie court’s reasoning is contrary to many other court rulings

Winn-Dixie won the appeal because

• The Court held that websites of private companies are not covered by the ADA because they are not physical “places of public accommodation.”
• The Court flatly rejected the “nexus” theory of ADA coverage that other courts have adopted. The nexus theory looks at the connection between what a site visitor can do on a website and how that is connected to what can be done in a physical place. If the 11th Circuit had used this theory, the fact that Mr. Gil wanted to order prescriptions on line and pick them up in a store would certainly have been enough of a connection to trigger ADA coverage.
• The court found that even though Mr. Gil would have to compromise his privacy and spend extra time in the store ordering and waiting for his prescriptions, there was not an “intangible barrier” to his ability to benefit from the store’s offerings. (The case was tried before the pandemic so the danger and risk of having to spend more time in the store was not addressed by the court.)

These findings run contrary to other court decisions around the country, including well known cases like Target (2008) first setting forth the nexus theory, and Netflix (2012) holding that the ADA covers web-only businesses.

You can find information about many of these earlier cases in the Legal Update section of this website, starting with the 2014 digital accessibility legal update

If Winn-Dixie sold something (anything!) through its website there might have been a different result.

In the very first sentence of the Opinion the Court wrote that Winn-Dixie, “a grocery store chain, operates a website for the convenience of its customers but does not offer any sales directly through its site.” Although it makes no sense to me, the fact that a customer cannot buy products directly on the site was of utmost important to the court’s convoluted reasoning in this case.

The 11th Circuit Opinion used the lack-of-sales-on-the-website to distinguish Winn-Dixie from the last big news in the web accessibility legal space – the Domino’s pizza case.

In 2019 the United States Supreme Court passed on taking up the issue of web accessibility in the Domino’s case. The Supreme Court pass meant that the Domino’s opinion from the 9th circuit remained good law. That 9th Circuit Opinion said the blind patron’s lawsuit could go forward.

How could the 11th Circuit rule as it did in Winn-Dixie after the Supreme Court’s pass on Domino’s? According to the Winn-Dixie Opinion the facts in Domino’s were “distinctly and materially different from the facts” in Winn-Dixie because “Domino’s made pizza sales through its website and app; here, Winn-Dixie makes no sales of its products on its site.”

Convoluted but clear: if a company with a physical location sells something on its website, the result may well have been very different.

And maybe now it would be — on last check Winn-Dixie now does have an online shopping option. That option was not mentioned in the Opinion and must not have existed at the time. Procedural rules often prevent new facts from coming into a case on appeal. Whether this development can have an impact on this case I do not know, but it is a further sign of its limited application.

Planning a separate website for Florida, Georgia and Alabama? If not, Winn-Dixie Opinion doesn’t matter

I have been involved in the legal side of web accessibility since the late 1990’s. With my legal hat on, and in the legal community, the Winn-Dixie opinion is big news. And for me personally, and the blind clients and organizations I have represented for more than two decades, it feels like a gut punch to read the words of the Opinion. They are deeply ableist in their failure to recognize the scope of the ADA and disabled people’s right to privacy, convenience, and participation in the digital world.

But does the Opinion really matter when it comes to deciding what kind of website a business should operate? I don’t think so.

As noted above, there is both an established and growing body of law across the country recognizing the right of disabled people to participate in the digital world. Increasingly, businesses understand the value of accessibility as far more than a way to avoid a lawsuit.

These companies know that accessibility, and its close cousin inclusive design, are good for business, a brand differentiator, and an opportunity for innovation. They know that digital accessibility is a core aspect of an ethical organization both for customers, employees, and the public at large.

The growing number of accessibility job openings is a recognition that accessibility is here to stay. I have every confidence that one wrong-headed decision by an ultra-right wing federal judge is not capable of turning back the clock on digital inclusion for disabled people.