Disability Law

11th Circuit decision ‘effectively closes the internet's doors to the blind,’ plaintiff's lawyers say

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Websites are not public accommodations that must be accessible to blind customers unless they create an intangible barrier that excludes disabled people from accessing goods and services in a physical store, a federal appeals court ruled Wednesday.

The protections of Title III of the Americans with Disabilities Act apply to tangible, physical places, rather than websites, the 11th U.S. Circuit Court of Appeals at Atlanta ruled in a lawsuit filed against Winn-Dixie Stores Inc., a grocery store chain in the Southeastern United States.

The appeals court ruled against lawsuit plaintiff Juan Carlos Gil, who is legally blind and unable to use the Winn-Dixie website because it is incompatible with screen reader software. The website allowed customers to refill prescriptions for in-store pickup and to link digital coupons to their store cards but did not sell groceries.

Gil wanted to use the website to fill prescriptions because in-person requests could be overheard by other people standing nearby. He also had to wait 20 to 30 minutes for the prescription after making an in-person request.

Federal appeals courts are split on the issue of whether Title III of the ADA limits places of public accommodation to physical locations, the 11th Circuit said in its April 7 opinion.

Title III bans discrimination on the basis of disability in the full and equal enjoyment of public accommodations. The law says discrimination occurs when an operator of a place of public accommodation fails to take steps to ensure that no person with a disability “is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.”

The law says auxiliary aids are not needed, however, if they would fundamentally alter the nature of the goods or services or they would cause an undue burden. The law provides several examples of public accommodations, including hotels, restaurants, theaters, auditoriums, schools and grocery stores.

All are “tangible, physical places,” the 11th Circuit said. “No intangible places or spaces, such as websites, are listed. Thus, we conclude that, pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places.”

Gil had argued that, under 11th Circuit precedent, the website nonetheless violates the ADA because it is an intangible barrier that prevents someone with disabilities from enjoying the goods and services of a place of public accommodation.

The 11th Circuit said the website does not create an intangible barrier because it has only limited functionality, and goods still must be purchased in the store.

A website does not create an intangible barrier unless it results in disabled people “being excluded, denied services, segregated or otherwise treated differently from other individuals in the physical stores,” the 11th Circuit said.

“For many Americans like Gil, inaccessibility online can be a significant inconvenience,” the 11th Circuit said. “But constitutional separation of powers principles demand that the details concerning whether and how these difficulties should be resolved is a project best left to Congress.”

Judge Elizabeth Branch, an appointee of former President Donald Trump, wrote the majority opinion. Judge Jill Pryor, an appointee of former President Barack Obama, dissented.

Courthouse News Service and Law360 have coverage.

Lawyers for Gil told Law360 in a statement that they may ask the U.S. Supreme Court to hear the case.

“This is a sad but temporary loss for the civil rights of people with disabilities,” said the lawyers, Josh Entin and David Ferleger. “The 11th Circuit’s landmark decision effectively closes the internet’s doors to the blind. The blind have lost the ADA.”

Hat tip to How Appealing.

See also:

ABA Journal: “ADA questions remain over web accessibility cases and the lack of DOJ regulations”

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