Juan Carlos Gil v. Winn-Dixie Stores, Inc. ( 2021 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13467
________________________
D.C. Docket No. 1:16-cv-23020-RNS
JUAN CARLOS GIL,
Plaintiff - Appellee,
versus
WINN-DIXIE STORES, INC.,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 7, 2021)
Before JILL PRYOR and BRANCH, Circuit Judges, and REEVES,* District
Judge.
BRANCH, Circuit Judge:
*
Honorable Danny C. Reeves, United States District Chief Judge for the Eastern District of
Kentucky, sitting by designation.
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Appellant Winn-Dixie Stores, Inc. (“Winn-Dixie”), a grocery store chain,
operates a website for the convenience of its customers but does not offer any sales
directly through the site. Appellee Juan Carlos Gil (“Gil”) is a long-time customer
with a visual disability who must access websites with screen reader software,
which vocalizes the content of the web pages. Unable to access Winn-Dixie’s
website with his software, Gil filed suit against Winn-Dixie under Title III of the
Americans with Disabilities Act (“ADA”). 1 After a bench trial, the district court
found that Winn-Dixie’s website violated the ADA. Gil v. Winn-Dixie Stores, Inc.,
257 F. Supp. 3d 1340, 1345 (S.D. Fla. 2017). Winn-Dixie timely appealed. After
the benefit of oral argument and careful consideration, we vacate and remand.
I.
Winn-Dixie owns and operates grocery stores in the Southeastern United
States. It is undisputed that Winn-Dixie only sells goods in its physical stores and
does not offer any sales directly through its limited use website. The website’s
primary functions at issue in this appeal are the ability to re-fill existing
prescriptions for in-store pickup, and to link digital manufacturer coupons to the
1
This opinion addresses the functionality and accessibility of Winn-Dixie’s website as of the
time that Gil filed the underlying complaint in July 2016. Any changes to the website that may
have occurred since then are not within the scope of this appeal.
2
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customer’s Winn-Dixie rewards card so that the coupons are applied automatically
upon check out at a physical store. 2
For over fifteen years, Gil, who is legally blind, frequented Winn-Dixie’s
physical grocery stores to shop and occasionally to fill his prescriptions. Upon
learning of the existence of Winn-Dixie’s website, Gil 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.3
On July 1, 2016, Gil brought this action in the form of a single claim under
Title III of the ADA, 42 U.S.C. §§ 12181–12189, alleging in his complaint 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. Gil alleged that the website itself
was “a place of public accommodation under the ADA,” and that the website had
2
Many of the various informational services on Winn-Dixie’s website (including those not at
issue) are provided by third-party vendors. Winn-Dixie’s website also includes a store locator
function, which Gil was unable to access with his screen reader software. However, at trial, he
testified that he had no problem finding businesses (including Winn-Dixie stores) without using
Winn-Dixie’s website—he instead used Google. And in his response brief and at oral argument,
Gil focused on his inability to access the prescription refill feature and the coupon-linking tool as
the primary violations of the ADA. Accordingly, this opinion will focus on those features as
opposed to the store locator feature.
3
Gil uses two of the variety of screen reader software available. After making several attempts to
access Winn-Dixie’s website using two different screen reader software programs, Gil
determined that “90 percent” of the Winn-Dixie website was incompatible with screen reader
software. In their joint pre-trial stipulation, the parties agreed that Winn-Dixie’s website “was
not designed specifically to integrate with screen reader software.”
3
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“a direct nexus to Winn Dixie grocery stores and on-site pharmacies.” Thus, he
asserted that Winn-Dixie violated the ADA because the website was inaccessible
to visually impaired individuals, and, therefore, Winn-Dixie “ha[d] not provided
full and equal enjoyment of the services, facilities, privileges, advantages and
accommodations provided by and through its website www.winndixie.com.” Gil
sought declaratory and injunctive relief, attorney’s fees, and costs. In particular,
Gil 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. 4
Winn-Dixie answered the complaint, admitting that “its physical grocery
stores and pharmacies are places of public accommodation,” but denying the
complaint’s allegations that its website was a place of public accommodation and
4
Gil did not indicate in his pleadings which provision of Title III of the ADA Winn-Dixie was
violating, and the district court focused on the general discrimination provision, 42 U.S.C.
§ 12182(a), which provides that “[n]o individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,
or accommodations of any place of public accommodation by any person who owns, leases (or
leases to), or operates a place of public accommodation.” However, Title III also provides more
specific examples of what constitutes discrimination by a place of public accommodation,
including where an operator of a place of public accommodation “fail[s] to take such steps as
may be necessary to ensure that no individual with a disability is excluded, denied services,
segregated or otherwise treated differently than other individuals because of the absence of
auxiliary aids and services.” Id. § 12182(b)(2)(A)(iii). Based on the briefing of the parties in this
appeal and the arguments made at the bench trial, we conclude that the gravamen of Gil’s
argument was that Winn-Dixie was in violation of Title III of the ADA because it discriminated
against him on account of his visual disability when it failed to provide auxiliary aids and
services to make its website accessible with screen reader software, which prevented him from
fully and equally enjoying the “goods, services, privileges, or advantages” of Winn-Dixie, in
violation of 42 U.S.C. §§ 12182(a) and (b)(2)(A)(iii).
4
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in violation of the ADA. The parties then engaged in discovery, and on October 24,
2016, Winn-Dixie filed a motion for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c), arguing that the ADA’s “public accommodation”
provisions do not apply to its website because the site is not a physical location and
lacks a sufficient “nexus” to any physical location.
On March 15, 2017, the district court denied the motion for judgment on the
pleadings. Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315, 1316 (S.D. Fla.
2017). The court acknowledged that the circuit courts are split on the issue of
whether the ADA limits places of public accommodation to physical locations. Id.
at 1318. It noted that this Circuit has not specifically determined whether websites
are public accommodations under the ADA, but cited Rendon v. Valleycrest
Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002) as offering guidance. The court
reasoned that Rendon extends the ADA’s coverage to “intangible barriers” that
restrict a disabled person’s enjoyment of the “goods, services, and privileges” of a
public accommodation. Gil, 242 F. Supp. 3d at 1319. It agreed with other district
courts within this Circuit that have held that websites are subject to the ADA if a
plaintiff shows a sufficient “nexus” between the website and physical premises. Id.
at 1319–20. Ultimately, the court concluded that “Winn-Dixie’s website is heavily
integrated with, and in many ways operates as a gateway to, Winn-Dixie’s physical
store locations.” Id. at 1321. The court thus found that Gil had shown a sufficient
5
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nexus between the website and Winn-Dixie’s physical stores such that Winn-Dixie
was not entitled to judgment as a matter of law. Viewing the facts in a light most
favorable to Gil, the district court held that the website’s inaccessibility denied Gil
“equal access to the services, privileges, and advantages of Winn-Dixie’s physical
stores and pharmacies.” Id. at 1321. The court also concluded that it “need not
determine whether Winn-Dixie’s website is a public accommodation in and of
itself.” Id.
At the bench trial, Gil testified that in the fifteen years during which he
shopped in Winn-Dixie stores, when he needed to re-fill a prescription, he would
ask an associate to guide him to the pharmacy area where he would tell the
pharmacist what he needed, and he would wait anywhere from 20 to 30 minutes for
the prescription. He explained that he was uncomfortable requesting his
prescription refills in person because he did not know who might be standing near
him and could overhear his conversation. Therefore, when he learned Winn-Dixie
had a website, he was interested in utilizing its potential online capabilities so that
he would not have to request help from Winn-Dixie employees in refilling his
prescriptions. Upon determining that he was unable to use much of the website’s
functionality, however, Gil decided to discontinue shopping at Winn-Dixie’s
physical stores entirely. He testified at trial that he was “deterred” from going to
the physical store, not by any change in the physical access available to him at the
6
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physical store, but due to his frustration with the lack of functionality on the
website. He last shopped there in the summer of 2016 but testified that he will
return to shopping at Winn-Dixie’s physical stores when the website is accessible
to him.
Gil also mentioned for the first time at trial that he was interested in using
the coupon linking option of the website, which permits customers to use the
website to link manufacturer’s digital coupons to the customer’s Winn-Dixie
rewards card for automatic application at checkout.5 He explained that he used
coupons before when he shopped in the physical stores, but due to his visual
impairment, the only way for him to get coupons was to ask a friend to read the
newspaper coupons to him or ask Winn-Dixie employees for assistance.
After a bench trial, the district court entered judgment in favor of Gil,
finding that Winn-Dixie had violated Gil’s rights under Title III of the ADA. Gil v.
Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017). Specifically, the
court noted again that it need not decide whether Winn-Dixie’s website is a public
accommodation “in and of itself,” because the website is “heavily integrated” with
Winn-Dixie’s physical stores—so much so that it “operates as a gateway to the
5
All of Gil’s pleadings leading up to trial focused solely on his inability to access the
prescription refill tool on the website. At trial, however, Gil for the first time asserted that he also
sought to access the coupon linking feature, and the parties litigated this issue as though Gil
raised it in his pleadings. Thus, there is no indication that Winn-Dixie suffered any prejudice
from the addition of this belated claim.
7
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physical store locations,” id. at 1348–49. It held that, as the ADA “requires that
disabled people be provided ‘full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place of public
accommodation . . . ,’” 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. Id. at 1349 (quoting 42 U.S.C. § 12182(a)). The district
court issued an injunction that, among other terms, required Winn-Dixie to make
its website accessible to individuals with disabilities, specifically by conforming its
website—including “third party vendors who participate on its website—to Web
Content Accessibility Guidelines 2.0 (“WCAG 2.0”), which is a set of accessibility
standards generated by a private consortium. 6 Id. at 1351. The injunction also
required Winn-Dixie to implement a publicly available Web Accessibility Policy,
“provide mandatory web accessibility training to all employees who write or
develop programs or code for, or who publish final content to” its website on an
annual basis, and conduct accessibility tests of the website every three months. Id.Winn-Dixie appealed.
6
There is some dispute as to how much it would cost to bring the website into compliance, but
Winn-Dixie represents that it would cost $250,000.
8
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II.
Winn-Dixie raises three key issues on appeal: (1) whether Gil has standing
to bring this case, (2) whether websites are places of public accommodation under
Title III of the ADA, and (3) whether the district court erred in its verdict and
judgment in favor of Gil, including the court’s injunction. After first addressing the
standing issue, we turn to whether websites are (in and of themselves) places of
public accommodations under the ADA. 7 We then determine whether Winn-
Dixie’s website violates the ADA.
“We review standing determinations de novo.” A&M Gerber Chiropractic
LLC v. GEICO Gen. Ins. Co., 925 F.3d 1205, 1210 (11th Cir. 2019).
Following a bench trial, we review the district court’s conclusions of law de
novo, and its factual findings for clear error. AIG Centennial Ins. Co. v. O’Neill,
782 F.3d 1296, 1301 n.4, 1308 (11th Cir. 2015). We review the grant of an
injunction for abuse of discretion. Simmons v. Conger, 86 F.3d 1080, 1085 (11th
Cir. 1996).
A. Standing
As an initial matter, we address Winn-Dixie’s argument that Gil lacks
standing to bring this action—in particular, that Gil has suffered no injury in fact.
7
Winn-Dixie also argues that the district court erred in denying its motion for judgment on the
pleadings. Because we vacate the final judgment, we do not address the judgment on the
pleadings issue.
9
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Gil argues that his inability to access Winn-Dixie’s website is a particularized
injury in fact.
The Constitution limits the jurisdiction of federal courts to “cases” and
“controversies,” U.S. Const. Art. III § 2, and “the doctrine of standing serves to
identify those disputes which are appropriately resolved through the judicial
process.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). The elements of
standing are (1) “injury in fact,” (2) a causal connection between the injury and the
conduct complained of, and (3) that the injury “is likely to be redressed by a
favorable judicial decision.” Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917,
924 (11th Cir. 2020) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)).
The “injury in fact” element requires a plaintiff to demonstrate a personal stake in
the litigation and an “[a]bstract injury is not enough.” City of Los Angeles v. Lyons,
461 U.S. 95, 101 (1983). In addition, when seeking injunctive relief, a plaintiff
“must show past injury and a real and immediate threat of future injury” that is not
“conjectural” or “hypothetical.” Lujan v. Defenders. of Wildlife, 504 U.S. 555, 560
(1992); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1329 (11th Cir.
2013). Further, if a party seeks an injunction under Title III, the party “either must
have attempted to return to the non-compliant building” or “intend to do so in the
future.” Houston, 733 F.3d at 1336 (citations omitted).
10
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Of the required elements of standing, Winn-Dixie disputes only whether Gil
has suffered an injury in fact, given that he was able to use the physical stores for
years before he knew the website existed. While Gil does not dispute that he was
able to access the physical store without impediment, he argues that he suffered an
injury both when “he was unable to avail himself of the goods and services” on the
website and when the website interfered with his “ability to equally enjoy the
goods and services of Winn-Dixie’s stores.” The difficulties caused by his inability
to access much of the Winn-Dixie website constitute a “concrete and
particularized” injury that is not “conjectural” or “hypothetical,” and will continue
if the website remains inaccessible. See Muransky, 979 F.3d at 925; Lujan, 504
U.S. at 560–61. Accordingly, Gil has Article III standing to bring the case.
B. Websites and Public Accommodations
Turning to the merits, this case presents two primary issues: (1) whether
Winn-Dixie’s website is a place of public accommodation in and of itself, such that
its inaccessibility violates Title III; and (2) if it is not a place of public
accommodation, whether the website otherwise violates Title III.
11
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1. Is the website, in and of itself, a place of public
accommodation under Title III? 8
We must first determine whether Winn-Dixie’s website is considered a place
of public accommodation under Title III of the ADA.
Congress passed the ADA in 1990 and amended it in 2008. “[T]he ADA
forbids discrimination against disabled individuals in major areas of public life,
among them employment (Title I of the Act), public services (Title II), and public
accommodations (Title III). PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).
Our analysis in this place of public accommodation case begins with the text
of Title III. Under Title III, “[n]o individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public accommodation
by any person who owns, leases (or leases to), or operates a place of public
accommodation.” 42 U.S.C. § 12182(a) (emphasis added).
8
As noted above, the main premise of Gil’s complaint was that Winn-Dixie’s website itself was
a place of public accommodation under Title III, but the district court twice declined to reach this
issue. Because, as discussed further in this opinion, we reverse the district court’s holding related
to the website being an intangible barrier to Winn-Dixie’s physical stores, we necessarily must
reach this issue in order to determine whether there is another basis for affirming the judgment.
We also note that, although Gil did not advance this theory in his response brief or at oral
argument, he was on notice that it was a potential issue before this Court because he raised the
issue in his complaint and the appellant Winn-Dixie raised the issue in its briefing on appeal.
12
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Title III then provides more specific examples of what constitutes
discrimination for purposes of § 12182(a). Id. § 12182(b)(2)(A)(i)-(v). 9 The only
provision relevant to this appeal is § 12182(b)(2)(A)(iii), which provides that
9
Specifically, Title III provides that:
For purposes of subsection (a) of this section, discrimination includes—
(i) the imposition or application of eligibility criteria that screen out or tend to
screen out an individual with a disability or any class of individuals with disabilities
from fully and equally enjoying any goods, services, facilities, privileges,
advantages, or accommodations, unless such criteria can be shown to be necessary
for the provision of the goods, services, facilities, privileges, advantages, or
accommodations being offered;
(ii) a failure to make reasonable modifications in policies, practices, or procedures,
when such modifications are necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to individuals with disabilities, unless
the entity can demonstrate that making such modifications would fundamentally
alter the nature of such goods, services, facilities, privileges, advantages, or
accommodations;
(iii) a failure to take such steps as may be necessary to ensure that no individual
with a disability is excluded, denied services, segregated or otherwise treated
differently than other individuals because of the absence of auxiliary aids and
services, unless the entity can demonstrate that taking such steps would
fundamentally alter the nature of the good, service, facility, privilege, advantage,
or accommodation being offered or would result in an undue burden;
(iv) a failure to remove architectural barriers, and communication barriers that are
structural in nature, in existing facilities, and transportation barriers in existing
vehicles and rail passenger cars used by an establishment for transporting
individuals (not including barriers that can only be removed through the retrofitting
of vehicles or rail passenger cars by the installation of a hydraulic or other lift),
where such removal is readily achievable; and
(v) where an entity can demonstrate that the removal of a barrier under clause (iv)
is not readily achievable, a failure to make such goods, services, facilities,
privileges, advantages, or accommodations available through alternative methods
if such methods are readily achievable.
42 U.S.C. § 12182(b)(2)(A).
13
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discrimination occurs when an operator of a place of public accommodation
“fail[s] to take such steps as may be necessary to ensure that no individual with a
disability is excluded, denied services, segregated or otherwise treated differently
than other individuals because of the absence of auxiliary aids and services.” Id.§ 12182(b)(2)(A)(iii). A place of public accommodation does not have to provide
auxiliary aids or services if “taking such steps would fundamentally alter the nature
of the good, service, facility, privilege, advantage, or accommodation being offered
or would result in an undue burden.” Id.
So what is a “a public accommodation” under Title III of the ADA? It is
defined as follows:
The following private entities are considered public accommodations
for purposes of this subchapter, if the operations of such entities affect
commerce--
(A) an inn, hotel, motel, or other place of lodging, except for an
establishment located within a building that contains not more than five
rooms for rent or hire and that is actually occupied by the proprietor of
such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place
of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of
public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping
center, or other sales or rental establishment;
14
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(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel
service, shoe repair service, funeral parlor, gas station, office of an
accountant or lawyer, pharmacy, insurance office, professional office
of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public
transportation;
(H) a museum, library, gallery, or other place of public display or
collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate
private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank,
adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place
of exercise or recreation.
42 U.S.C. § 12181(7). This section provides an expansive list of physical locations
which are “public accommodations,” including, as is relevant here, a “grocery
store.” Id. The list covers most physical locations in which individuals will find
themselves in their daily lives. Notably, however, the list does not include
websites.
The Department of Justice, responsible for promulgating regulations to
implement the ADA, 42 U.S.C. § 12186(b), 10 has provided a detailed explanation
10
The section provides:
Not later than 1 year after July 26, 1990, the Attorney General shall issue
regulations in an accessible format to carry out the provisions of this subchapter not
15
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of the meaning of “public accommodation.” 28 C.F.R. § 36.104. The regulation
echoes the language of the statute, listing a plethora of physical spaces including
“[a] bakery, grocery store, clothing store, hardware store, shopping center, or other
sales or rental establishment,” not including websites. 11 Id.Our analysis is straightforward. “[I]n interpreting a statute a court should
always turn first to one, cardinal canon before all others. We have stated time and
again that courts must presume that a legislature says in a statute what it means and
means in a statute what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253–54 (1992). “When the words of a statute are unambiguous . . . [our] ‘judicial
inquiry is complete.’” Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 969
(11th Cir. 2016) (quoting Conn. Nat’l Bank, 503 U.S. at 254).
The statutory language in Title III of the ADA defining “public
accommodation” is unambiguous and clear.12 It describes twelve types of locations
referred to in subsection (a) that include standards applicable to facilities and
vehicles covered under section 12182 of this title.
42 U.S.C. § 12186(b).
11
Gil points to historical statements made by the Department of Justice to imply that the
Department of Justice supports his position that websites should be subject to Title III. The
Department of Justice, however, has never issued a final ADA regulation concerning whether
websites are places of public accommodation.
12
Gil relies on legislative history to support the notion that Congress intended an expansive
definition of “public accommodation” in the ADA that would change with evolving
technologies. But we have previously held that “Congress has provided, in Title III of the ADA,
a comprehensive definition of ‘public accommodation’” and “[b]ecause Congress has provided
16
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that are public accommodations. All of these listed types of locations are tangible,
physical places. 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. 13 Necessarily then, we hold
such a comprehensive definition of ‘public accommodation,’ we think that the intent of Congress
is clear enough.” Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1241 (11th Cir. 2000)
(construing the definition of “public accommodation” in Title III). And, to put it plainly,
“legislative history is not the law.” Azar v. Allina Health Servs., 139 S. Ct. 1804, 1814 (2019)
(quotation marks omitted). “The language of the statute is entirely clear, and if that is not what
Congress meant then Congress has made a mistake and Congress will have to correct it.” Conroy
v. Aniskoff, 507 U.S. 511, 528 (1993) (Scalia, J., concurring).
13
In so holding, we join several of our sister circuits. The Third Circuit held that “[t]the plain
meaning of Title III is that a public accommodation is a place.” Ford v. Schering-Plough Corp.,
145 F.3d 601, 612 (3d Cir. 1998). Similarly, the Sixth Circuit held that “the plaintiffs’ argument
that the prohibitions of Title III are not solely limited to ‘places’ of public accommodation
contravenes the plain language of the statute.” Stoutenborough v. Nat’l Football League, Inc., 59
F.3d 580, 583 (6th Cir. 1995). Specifically, the hearing-impaired plaintiffs in Stoutenborough
challenged the National Football League’s “blackout rule,” which prohibited live broadcast of
home football games when the games were not sold out, leaving live radio broadcast as the only
alternative. Id. at 582. The court held that “[a]lthough a [football] game is played in a ‘place of
public accommodation’ and may be viewed on television in another “place of public
accommodation,” the “service” of a televised broadcast “does not involve a ‘place of
accommodation.” Id.; see also Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir.
1997) (“As is evident by § 12187(7), a public accommodation is a physical place.”). The Ninth
Circuit has also held that under the principle of noscitur a sociis, “place of public
accommodation” should be interpreted within the context of the accompanying words, which are
all “actual, physical places where goods or services are open to the public, and places where the
public gets those goods or services.” Weyer v. Twentieth Century Fox Film Corp., 198 F.3d
1104, 1114 (9th Cir. 2000).
We note, however, that, other circuits have disagreed. The First Circuit has determined
that that the phrase “public accommodation” “is not limited to actual physical structures.”
Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st
Cir. 1994). And in Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999), the
Seventh Circuit cited Carparts approvingly, writing that “[t]he core meaning of [the public
accommodation] provision, plainly enough, is that the owner or operator of a store, hotel,
restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical
space or in electronic space) . . . that is open to the public cannot exclude disabled persons.”
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that websites are not a place of public accommodation under Title III of the
ADA.14 Therefore, Gil’s inability to access and communicate with the website
itself is not a violation of Title III.
2. Does Winn-Dixie’s website otherwise violate Title III?
Our analysis does not end with the conclusion that a website is not a place of
public accommodation as Gil does not take the position that websites must be
declared places of public accommodation for him to be afforded relief. Instead, he
argues that, pursuant to this Circuit’s precedent, the ADA forbids not just physical
barriers, but also “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. Thus, he contends that the website violates Title
III because its inaccessibility serves 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.
As discussed in section one, Title III provides that “[n]o individual shall be
discriminated against on the basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or accommodations of any
place of public accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.” 42 U.S.C. § 12182(a). For purposes of
14
Notably, the dissent does not challenge this holding.
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this general discrimination prohibition, discrimination includes instances where a
place of public accommodation “fail[s] to take such steps as may be necessary to
ensure that no individual with a disability is excluded, denied services, segregated
or otherwise treated differently than other individuals because of the absence of
auxiliary aids and services.” See id. § 12182(b)(2)(A)(iii). And in Rendon v.
Valleycrest Productions, Ltd., we held that the
plain and unambiguous statutory language . . . reveals that the
definition of discrimination provided in Title III covers both tangible
barriers, that is physical and architectural barriers that would prevent a
disabled person from entering an accommodation’s facilities and
accessing its goods, services and privileges, see 42 U.S.C.
§ 12182(b)(2)(A)(iv), and intangible barriers, such as eligibility
requirements and screening rules or discriminatory policies and
procedures that restrict a disabled person’s ability to enjoy the
defendant entity’s goods, services and privileges, see 42 U.S.C.
§ 12182(b)(2)(A)(i)-(ii).
294 F.3d 1279, 1283 (11th Cir. 2002) (emphasis added). We also noted in dicta
that “an intangible barrier may result as a consequence of a defendant entity’s
failure to act, that is, when it refuses to provide a reasonable auxiliary service that
would permit the disabled to gain access to or use its goods and services,” which
would violate 42 U.S.C. § 12182(b)(2)(A)(iii).15 Rendon, 294 F.3d at 1283 n.7. Gil
15
Admittedly, our use of the term “reasonable auxiliary service” in Rendon was imprecise and
did not track the statutory language. To be clear, discrimination under Title III occurs where a
place of public accommodation “fail[s] to take such steps as may be necessary to ensure that no
individual with a disability is excluded, denied services, segregated or otherwise treated
differently than other individuals because of the absence of auxiliary aids and services,” not
where a place of public accommodation simply fails to provide auxiliary services that may be
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relies upon this intangible barrier discussion in Rendon to argue that, even though
Winn-Dixie’s website is not itself a place of public accommodation, its
inaccessibility to individuals who are visually disabled nevertheless violates Title
III because it operates as an “intangible barrier” to accessing the goods, services,
privileges, or advantages of Winn-Dixie’s physical stores. 16
But at a fundamental level, Winn-Dixie’s limited use website is unlike the
intangible barrier asserted in Rendon. Specifically, the Rendon plaintiffs brought a
Title III ADA claim against the production companies of the television game show
“Who Wants To Be A Millionaire.” 294 F.3d at 1280. The producers of the show
conducted contestant selection by using an automated hotline that provided a series
of questions. Callers could use their telephone keypads to respond to the questions,
and those who answered correctly could proceed through multiple rounds of the
selection process and ultimately have a chance of appearing on the show. Id.Notably, this hotline was the only method of contestant selection. The Rendon
plaintiffs’ disabilities included lack of hearing and “upper-body mobility
“reasonable” to ensure discrimination does not occur. 42 U.S.C. § 12182(b)(2)(A)(iii) (emphasis
added); see also 28 C.F.R. § 36.303(c)(1) (“A public accommodation shall furnish appropriate
auxiliary aids and services where necessary to ensure effective communication with individuals
with disabilities.” (emphasis added)); PGA Tour, 532 U.S. at 682 (distinguishing in dicta
between a “reasonable” and a “necessary” ADA modification).
16
The services or privileges of the place of public accommodation, i.e., Winn-Dixie’s physical
stores, that are at issue in this case are the ability to refill a prescription and the redemption of
coupons.
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impairments,” such that they “could not register their entries, either because they
were deaf and could not hear the questions on the automated system, or because
they could not move their fingers rapidly enough to record their answers on their
telephone key pads.” Id. at 1280–81. The system lacked Telecommunications
Devices for the Deaf (“TDD”) services, which allow deaf people to communicate
with each other via text sent from each user’s TDD machine, or between a deaf
person and a hearing person using a relay operator provided by the
telecommunication carrier. Id. at 1281 n.1. Accordingly, the plaintiffs alleged that
the automated contestant hotline was a discriminatory procedure that screened out
disabled hearing-impaired and mobility-impaired individuals who sought to be
contestants on the show. Id. at 1281. The district court dismissed the complaint,
concluding that Title III did not apply to the contestant hotline because it was not
administered in a place of public accommodation. Id. We reversed on appeal based
on our holding that the ADA’s discrimination provisions applied not just to
physical barriers but also to “intangible barriers.” Id. at 1283–84. And we
concluded that the plaintiffs had “stated a valid claim under Title III by alleging
that the . . . telephone selection process is a discriminatory screening mechanism,
policy or procedure, which deprives them of the opportunity to compete for the
privilege of being a contestant” on the gameshow. Id. at 1286.
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Because the phone system in Rendon provided the sole access point for
individuals to compete for the privilege of being a contestant on the game show
and that same phone system was inaccessible by individuals with certain
disabilities, it necessarily acted as an “intangible barrier” that prevented the
plaintiffs from “accessing a privilege” of a physical place of public
accommodation (the game show). In the case at hand, however, Winn-Dixie’s
limited use website, although inaccessible by individuals who are visually
disabled, does 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 (the operative place of public accommodation). Specifically,
Winn-Dixie’s website has only limited functionality.17 Most importantly, it is not a
point of sale; all purchases must occur at the store. Further, all interactions with
Winn-Dixie which can be (although need not be) initiated on the website must be
completed in-store: prescription pick-ups and redemption of coupons. And nothing
prevents Gil from shopping at the physical store. In fact, he had done so for many
years before he freely chose to stop shopping there. Although Gil was not always
happy with the speed or privacy of the service he received at the pharmacy,
nothing prevented Gil from refilling his prescriptions during his time as a Winn-
17
At oral argument, Gil agreed that Winn-Dixie is not required to have a website, and that it
could simply remove the site.
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Dixie customer.18 And for years, Gil used paper coupons at Winn-Dixie’s stores,
despite any inconveniences such use entailed. Accordingly, we hold that Winn-
Dixie’s website does not constitute an “intangible barrier” to Gil’s ability to access
and enjoy fully and equally “the goods, services, facilities, privileges, advantages,
or accommodations of” a place of public accommodation (here, a physical Winn-
Dixie store). Consequently, Gil’s inability to access the website does not violate
Title III of the ADA in this way.
The dissent reaches the opposite conclusion, reasoning that because Gil is
not able to access the services or privileges offered on the website, he is therefore
“treated differently” than sighted customers because of the absence of an auxiliary
aid on the website in violation of 42 U.S.C. § 12182(b)(2)(A)(iii). As the dissent
points out, the term “auxiliary aid” refers to a tool or service that ensures “effective
communication” with a person who has a hearing, vision, or speech disability and
the place of public accommodation. See 28 C.F.R. § 36.303(c)(1). Thus, the dissent
concludes that Winn-Dixie is in violation of § 12182(b)(2)(A)(iii) because its
website is incompatible with screen reader software (an auxiliary aid), which
prevents Gil and other visually disabled patrons from accessing the services,
18
We note that at trial, Winn-Dixie’s representative testified that new prescriptions could not be
submitted and filled through the website. Rather, “the doctor actually has to call [the new
prescription] in and then [the customer] ha[s] to pick it up in the store.” While presumably
customers could also call the pharmacy to request refills of prescriptions in advance of arriving
at the physical store, there is nothing in the record to indicate that this option was available.
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privileges, and advantages offered on the website which “‘improve[s] [the]
position or condition’ of Winn-Dixie’s [sighted] customers.” The problem with the
dissent’s conclusion in this case is that, as we explained above, the website itself is
not a place of public accommodation; rather places of public accommodation are
limited to actual, physical spaces. Therefore, Gil’s mere inability to communicate
with and access the services available on the website does not mean that Winn-
Dixie necessarily is in violation of 42 U.S.C. § 1282(b)(2)(A)(iii). Rather, in order
for there to be a violation of § 12182(b)(2)(A)(iii), the inaccessibility of the
website must serve as an “intangible barrier” to Gil’s ability to communicate with
Winn-Dixie’s physical stores, which results in Gil being excluded, denied services,
segregated, or otherwise treated differently from other individuals in the physical
stores. 19 See Rendon, 294 F.3d at 1283–84. And while Gil asserted that he could
not “comprehend [Winn-Dixie’s] website in an effective manner” due to the
absence of an auxiliary aid, he never asserted that he was not able to communicate
19
Contrary to the dissent’s contention, we do not contend that the ADA limits discrimination
solely to conduct that results in a disabled person’s physical exclusion from a place of public
accommodation. Rather, our only contention is that Title III’s requirements are applicable to
places of public accommodation, which are only tangible, physical spaces. And, as explained
above, this conclusion results from a straightforward application of the cardinal rules of statutory
interpretation. We agree with the dissent that our caselaw holds that Title III applies to
“intangible barriers” that serve to restrict a disabled individual’s ability to access the goods,
services, and privileges of a place of public accommodation. See Rendon, 294 F.3d at 1283–84.
We also agree with the dissent that under § 12182(b)(2)(A)(iii), the ADA may be violated if, in a
place of public accommodation, a disabled individual is “excluded, denied services, segregated,
or otherwise treated differently than other individuals because of the absence of auxiliary aids,”
but we disagree that under the unique facts of this case any such exclusion, denial of services,
segregation, or otherwise different treatment occurred.
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effectively with, or access the services offered in, the physical stores. Nor could he,
because as explained previously the record clearly establishes that for at least
fifteen years, Gil was able to enjoy fully and equally the services in question—
filling prescriptions and using coupons—in Winn-Dixie’s physical stores.
Consequently, there is no basis for concluding that Winn-Dixie violated
§ 12182(b)(2)(A)(iii).
Gil erroneously assumes in his arguments that Rendon established a “nexus”
standard, whereby a plaintiff only has to demonstrate that there is a “nexus”
between the service and the physical public accommodation. In other words, the
gravamen of Gil’s argument is that the website is in violation of Title III because it
“augments” the physical store’s services or privileges in various ways. But we did
not adopt or otherwise endorse a “nexus” standard in Rendon. Indeed, the only
mention of a “nexus” in Rendon is a footnote acknowledging that certain precedent
from other circuits “[a]t most, . . . can be read to require a nexus between the
challenged service and the premises of the public accommodation.” Id. at 1284 n.8
(emphasis added). And we decline to adopt a “nexus” standard here, as we find no
basis for it in the statute or in our precedent.
While acknowledging that the ADA does not require that places of public
accommodation provide identical experiences for disabled and non-disabled
patrons, see A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc.,
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900 F.3d 1270, 1294–95 (11th Cir. 2018); Silva v. Baptist Health S. Fla., Inc., 856
F.3d 824, 834 (11th Cir. 2017), the dissent argues that the lack of accessibility of
the website nevertheless violated the ADA because it failed to provide comparable
or “like” experiences to disabled and non-disabled Winn-Dixie customers.
Specifically, noting that the ADA does not define what constitutes “goods,
services, privileges, or advantages,” the dissent invokes a broad definition to
conclude that Winn-Dixie’s website’s content itself (i.e., the prescription refill and
coupon-linking tools) constitute a “service,” “privilege,” and an “advantage”
because those tools offer customers the benefit of obtaining goods or services
through “a streamlined, faster process that offered greater privacy.” Thus, the
dissent concludes that because visually disabled individuals cannot access the
website’s content, they are not receiving a “comparable” or “like” experience to
that of sighted customers as required by the ADA. But under such an expansive
interpretation, virtually anything—from the tangible to the intangible—might be
deemed a “service,” “privilege,” or “advantage” for purposes of Title III. In turn,
the place of public accommodation would then be required to provide “full and
equal enjoyment” to not only tangible services—in this case the filling of
prescriptions and redemption of coupons—but intangible “privileges” or
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“advantages” such as increased privacy and time saving benefits.20 When the text
of Title III is read in context and with a view to the overall statutory scheme, it is
clear that Title III will not bear such a sweeping interpretation. See Nat’l Ass’n of
Home Builders v. Defs. of Wildlife, 551 U.S. 664, 666 (2007) (“It is a ‘fundamental
canon of statutory construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory scheme.’” (quoting
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000))).
Furthermore, any convenience or time saving benefits afforded through the
website might make the provision of “auxiliary aids and services” reasonable but
is not dispositive of whether such “auxiliary aids and services” are in fact
20
The ADA “focus[es] on equal opportunity [for the disabled] to participate in or benefit from
the defendant’s goods and services,” A.L., 900 F.3d at 1295, it does not regulate the content of
the goods and services provided by a place of public accommodation and it does not require
identical experiences. No one disputes Gil could fill prescriptions in Winn-Dixie’s stores and
redeem coupons (and he did so for over 15 years). Contrary to the dissent’s conclusion, the fact
that Gil could not take advantage of the more streamlined, time-saving process of the website’s
tools to procure these same services does not mean that he was not afforded a “comparable” or
“like” experience to that of sighted customers. Gil is at no less of a disadvantage than a sighted
customer who does not have internet access and therefore cannot access the streamlined online
process. In sum, although the dissent acknowledges that all that the ADA requires of a place of
public accommodation is a “like” or “comparable” experience to that of sighted customers, in
practice, the dissent advances what the ADA does not mandate—that in order to have “full and
equal enjoyment” of Winn-Dixie’s physical store’s goods and services, visually disabled
customers must be afforded a virtually identical experience to that of sighted customers. “But
such a reading [of Title III] is plainly unrealistic, and surely unintended, because it makes an
unattainable demand.” McNeil v. Time Ins. Co., 205 F.3d 179, 187 (5th Cir. 2000); see also
Argenyi v. Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013) (holding that “[u]nder a
‘meaningful access’ standard, . . . aids and services are not required to produce the identical
result or level of achievement for handicapped and nonhandicapped persons, but they
nevertheless must afford handicapped persons equal opportunity . . . to gain the same benefit”
(quotations omitted)).
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“necessary to ensure that no individual with a disability is excluded, denied
services, segregated or otherwise treated differently than other individuals because
of the absence of auxiliary aids.” See 42 U.S.C. § 12182(b)(2)(A)(iii) (providing
that discrimination for purposes of 42 U.S.C. § 12182(a) includes “a failure to take
such steps as may be necessary to ensure that no individual with a disability is
excluded, denied services, segregated or otherwise treated differently than other
individuals because of the absence of auxiliary aids” (emphasis added)). And it is
only the latter that places of public accommodation are required to provide
pursuant to Title III. Id.; see also PGA Tour, 532 U.S. at 682 (distinguishing in
dicta between a “reasonable” and a “necessary” ADA modification and noting that,
where a disabled individual is able to participate, even if under “uncomfortable or
difficult” conditions, “an accommodation might be reasonable but not
necessary”). 21 As discussed previously, Gil has not asserted that the absence of
21
Although the Supreme Court’s discussion in PGA Tour of the difference between a
“reasonable” and a “necessary” ADA modification was dicta, it is well-established that “there is
dicta and then there is Supreme Court dicta.” Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir.
2006). We, along with our sister circuits, “have previously recognized that ‘dicta from the
Supreme Court is not something to be lightly cast aside,’” and at a minimum is of considerable
persuasive value. Id. at 1325–26 (quoting Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4
(11th Cir. 1997)); see also Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 281 (4th Cir.
2019) (en banc) (“[W]e routinely afford substantial, if not controlling deference to dicta from the
Supreme Court. Respect for the rule of law demands nothing less: lower courts grappling with
complex legal questions . . . must give due weight to guidance from the Supreme Court, so as to
ensure the consistent and uniform development and application of the law.” (internal citation
omitted)); United States v. Montero–Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en
banc) (“We do not treat considered dicta from the Supreme Court lightly. Rather, we accord it
appropriate deference . . . . As we have frequently acknowledged, Supreme Court dicta have a
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auxiliary aids prevents him from effectively communicating with, or accessing the
services of, Winn-Dixie’s physical stores—the operative place of public
accommodation.
Gil and to some extent the dissent urge us to reach the opposite conclusion
by following the Ninth Circuit in Robles v. Domino’s Pizza, LLC, 913 F.3d 898(9th Cir.), cert. denied, 140 S. Ct. 122 (2019), but Robles is both factually and
legally distinguishable. In Robles, the plaintiff, who is blind, was unable to order
pizza over the internet from his local Domino’s Pizza (“Domino’s”) because the
Domino’s app and website were incompatible with his screen reader software. He
brought an action under Title III, seeking damages and a permanent injunction
requiring Domino’s to comply with a specific private industry standard for website
accessibility. Id. at 902. The district court granted Domino’s motion to dismiss,
reasoning that although “the ADA’s ‘auxiliary aids and services’ section,
42 U.S.C. § 12182(b)(2)(A)(iii),” applied to the website and app, due process
concerns prevented the court from “imposing the [specific private industry]
standards on Domino’s without specifying a particular level of success criteria and
without the DOJ offering meaningful guidance on this topic” because to do so
weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold;
accordingly, we do not blandly shrug them off because they were not a holding.” (quotation
omitted)); Nichol v. Pullman Standard, Inc., 889 F.2d 115, 120 n.8 (7th Cir. 1989) (“This Court
should respect considered Supreme Court dicta.”).
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would “fl[y] in the face of due process.” Id. at 903 (quotation omitted). The Ninth
Circuit reversed. Noting that it did not have to address whether a website is itself a
public accommodation, id. at 905 n.6, it explicitly embraced a “nexus” standard:
“Customers use the website and app to locate a nearby Domino’s restaurant and
order pizzas for at-home delivery or in-store pickup. This nexus between Domino’s
website and app and physical restaurants—which Domino’s does not contest—is
critical to our analysis.” Id. at 905. The court went on to find that “the ADA
applies to Domino’s website and app, which connect customers to the goods and
services of Domino’s physical restaurants.” 22 Id. at 905–06. The court also
disregarded the district court’s due process concern, concluding that the plaintiff
was not seeking to “impose liability based on [the private industry standard],” but
rather based on the more general statutory provisions of Title III of the ADA and
its related regulations. Id. at 907. The court reasoned that compliance with the
private industry standard was simply an equitable remedy that the district court had
the power to impose for a Title III violation. Id. at 907–09.
While the underlying general difficulty for the plaintiff in Robles—the
incompatibility of Domino’s website and app with the plaintiff’s screen reader
22
In its conclusion, the court expressed “no opinion about whether Domino’s website or app
comply with the ADA,” leaving it “to the district court, after discovery, to decide in the first
instance whether Domino's website and app provide the blind with effective communication and
full and equal enjoyment of its products and services as the ADA mandates.” Robles, 913 F.3d at
911.
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software—is similar to Gil’s frustrations with Winn-Dixie’s website, the particular
facts of Robles are distinctly and materially different from the facts of this case.
Domino’s made pizza sales through its website and app; here, Winn-Dixie makes
no sales of its products on its site. Compare Robles, 913 F.3d at 902, with Gil, 257
F. Supp. 3d at 1345. The Robles plaintiffs complained they were denied access to
the goods and services of the physical stores through the website. In contrast, in
this case, Winn-Dixie’s website does not provide any direct sales of goods or
services or impede access to the goods and services offered in the physical stores.
Moreover, the application of the “nexus” standard was “critical” to the Robles’s
court’s holding, but as explained above, we decline to adopt the “nexus” standard.
In sum, we do not find Robles persuasive, either factually or legally. Instead, we
apply the statute, 42 U.S.C. §§ 12182(a) and (b)(2)(A)(iii), and our precedent, see
Rendon, 294 F.3d at 1283, to the facts before us, and we hold that the absence of
auxiliary aids on Winn-Dixie’s website does not act as an intangible barrier that
results in Gil being discriminatorily “excluded, denied services, segregated or
otherwise treated differently than other individuals” in the physical stores—the
operative place of public accommodation—because of the absence of auxiliary
aids and services as contemplated by the ADA. 42 U.S.C. § 12182(b)(2)(A)(iii).
Rather, we conclude that, on the facts of this case, Gil is able to enjoy fully and
equally “the goods, services, facilities, privileges, advantages, or accommodations
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of” Winn-Dixie’s physical stores as contemplated by Title III of the ADA. Id.§ 12182(a).
III.
There is no doubt that Congress enumerated a broad spectrum of public
accommodations when it enacted Title III of the ADA. There is similarly no doubt
that a commendable purpose of the ADA was reflected in its title: to enhance the
lives of Americans with disabilities by requiring certain accommodations for them.
We also recognize that for many Americans like Gil, inaccessibility online can be a
significant inconvenience. 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. “[O]ur constitutional structure does not
permit this Court to ‘rewrite the statute that Congress has enacted.’” Puerto Rico v.
Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1949 (2016) (quoting Dodd v. United
States, 545 U.S. 353, 359 (2005)). Absent congressional action that broadens the
definition of “places of public accommodation” to include websites, we cannot
extend ADA liability to the facts presented to us here, where there is no barrier to
the access demanded by the statute. We therefore vacate the district court’s Final
Judgment and remand for further proceedings consistent with this opinion.
VACATED and REMANDED.
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JILL PRYOR, Circuit Judge, dissenting:
In this appeal we consider whether the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., is violated when a place of public
accommodation, here, a store, offers valuable in-store benefits to customers
through a website that is inaccessible to individuals with visual disabilities.
Defendant Winn-Dixie Stores, Inc. operates grocery stores, some of which offer
pharmacy services. To enhance its customers’ shopping experience, Winn-Dixie
provided a website that enabled customers to, among other things, obtain express
prescription refills with greater privacy and more conveniently benefit from
discount offers by linking manufacturers’ coupons electronically to their Winn-
Dixie customer rewards cards. 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. The website
was incompatible with screen-reading technology that would enable them to use it.
Winn-Dixie’s visually-impaired customers therefore were treated differently than
its sighted customers and denied the full and equal enjoyment of services,
privileges, and advantages offered by Winn-Dixie stores. I 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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Title III prohibits operators of places of public accommodation, like Winn-
Dixie, from engaging in discrimination that deprives disabled individuals of “the
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). Discrimination prohibited by the ADA includes “a failure to take such
steps as may be necessary to ensure that no individual with a disability is excluded,
denied services, segregated[,] or otherwise treated differently than other
individuals because of the absence of auxiliary aids and services.” Id.§ 12182(b)(2)(A)(iii). Under this provision, an operator of a place of public
accommodation “shall furnish appropriate auxiliary aids and services where
necessary to ensure effective communication with individuals with disabilities.”
28 C.F.R. § 36.303(c)(1).
Winn-Dixie does not dispute that it failed to provide an auxiliary aid when it
refused to make its website compatible with screen-reading technology. As a
result, visually-impaired individuals could not access the website. And Winn-
Dixie provided no alternative way for them to request express prescription refills
or digitally link coupons to their rewards cards so that discounts could be applied
seamlessly at checkout—privileges and advantages that sighted customers enjoyed.
That conduct amounted to discrimination under § 12182(b)(2)(A)(iii) and was
therefore prohibited by § 12182(a).
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The majority opinion concludes that Winn-Dixie did not violate the ADA
because visually-impaired customers remained able to shop in Winn-Dixie stores,
where they could request prescription refills and manually redeem coupons. That
conclusion is premised on the majority opinion’s misunderstanding of the ADA’s
scope. The ADA’s guarantee of freedom from discrimination for disabled
individuals is broad: It prohibits places of public accommodation from denying
them “the 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). It protects disabled individuals not only from “exclu[sion],
deni[al] [of] services, and segregat[ion],” but also from being “treated differently.”
Id. § 12182(b)(2)(A)(iii). Winn-Dixie’s discriminatory conduct “treated [visually-
disabled individuals] differently,” denying them the full and equal enjoyment of its
stores’ “services,” “privileges,” and “advantages”—namely, the more favorable
treatment Winn-Dixie afforded to sighted customers, who could request express
prescription refills or link manufacturers’ digital coupons to their rewards cards
through the website before going to the store to shop. I would hold that in failing
to make its website accessible, Winn-Dixie violated the ADA. I dissent. 1
1
I am not arguing that the website in and of itself was a place of public accommodation
under the ADA, but I disagree with the majority opinion’s decision to fashion new circuit law on
that issue, an issue on which the circuits are split. See Maj. Op. at 17 n.13 (explaining that it is
taking a position in an existing circuit split). As the majority opinion acknowledges, the district
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I.
Plaintiff Juan Carlos Gil is a long-time Winn-Dixie shopper who is legally
blind. While in high school, Gil visited a Winn-Dixie grocery store as part of a
class project, discovered that Winn-Dixie offered the lowest prices on groceries,
and became a loyal Winn-Dixie customer. For more than 15 years, Gil bought his
groceries at Winn-Dixie stores and filled his prescriptions there.
When Gil wanted to refill a prescription at Winn-Dixie, he went to the store,
asked for employee assistance, walked with the employee to the pharmacy area,
and told the pharmacist what he needed. The process would take 20 to 30 minutes.
Its inherent lack of privacy made Gil “uncomfortable because he did not know who
court “twice declined to reach the issue,” id. at 12 n.8, and Gil did not “plainly and prominently”
present it in his brief on appeal. Young v. Grand Canyon Univ., Inc., 980 F.3d 814, 821 n.4 (11th
Cir. 2020) (“Although an appellee may urge us to affirm on any basis supported by the record,”
he abandons a position when he “does not plainly and prominently raise it, for instance by
devoting a discrete section of his argument to those claims.” (internal quotation marks omitted));
see also Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318–19 (11th Cir. 2012)
(concluding that issue was waived when appellee mentioned it only in passing). Moreover, Gil
flatly denied that he was raising the issue when asked about it at oral argument.
We generally do not consider—just to reject—arguments that appellees could have raised
on appeal to defend a district court’s judgment when those arguments are not presented to us.
See Hamilton, 680 F.3d at 1319. This restraint “promotes careful and correct decision
making[,]” “gives the appellate court the benefit of written arguments[,] and provides the court
and the parties with an opportunity to prepare for oral argument with the opposing positions and
arguments in mind.” Id. Particularly given the circuit split, I disagree with the majority’s
decision to rule, without the benefit of adversarial argument, on whether websites can ever be
places of public accommodation under the ADA because “[where] it is not necessary to decide
more, it is necessary not to decide more.” PDK Labs. Inc. v. U.S. Drug Enf’t Agency, 362 F.3d
786, 799 (D.C. Cir. 2004) (Roberts, J., concurring).
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else was nearby listening” as he asked the pharmacist to refill his prescriptions.
Doc. 63 at 3. 2
When Gil, who had a low income, bought groceries at Winn-Dixie, he
sometimes used coupons to take advantage of promotions. Taking advantage of
those promotions required him to ask friends to read the coupons to him from a
newspaper or request the help of Winn-Dixie employees. Employees were
sometimes “annoyed by his request for help.” Id.Eventually, Gil learned that Winn-Dixie operated a website that enabled
customers to, among other things, request prescription refills before coming to the
store and link digital coupons to their customer rewards cards so that discounts
were applied automatically at checkout. Through the website’s prescription
feature, customers could, in the privacy of their own homes, request refills in
advance and then pick up their medication at the store when it was ready.3 They
could also transfer a prescription to be filled at a different Winn-Dixie store.
Winn-Dixie described the online refill order feature as allowing customers to
obtain “express re-fill[s]” of their prescriptions. Doc. 65 at 87. Gil sought to use
2
“Doc.” numbers refer to the district court’s docket entries.
3
The prescription refill request tool, as well as the other tools on Winn-Dixie’s website
that are relevant to this appeal, was operated by a third-party. This fact does not affect the
analysis. Winn-Dixie seamlessly incorporated these tools into its website to offer benefits to its
customers. And, with respect to liability under the ADA, the parties do not place any
significance on the fact that a third party, instead of Winn-Dixie, actually operated the tools.
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this feature because it would afford him greater independence, convenience, and
privacy, by allowing him to obtain prescription refills without having to disclose
his medical information where others could overhear.
Through the website’s coupon feature, customers could click on
manufacturers’ coupons displayed on the website to link the coupons to their
customer rewards cards. Then, when the customer shopped and scanned his
rewards card, the coupon discount was applied automatically to his order. Winn-
Dixie accepted manufacturers’ coupons in stores, the website tool was the only
way a customer could link a coupon to his rewards card for automatic application
at checkout. Gil, who had a rewards card, was interested in using this feature
because it would give him greater independence by making it possible for him to
find and use coupons without having to ask friends or store employees for help.
Gil also sought to use the website’s store locator feature, which allowed its
nondisabled customers to discover the location of Winn-Dixie’s 495 stores that are
spread throughout the southeastern United States. As a para-Olympian, Gil
frequently travels across Florida. When he travels, he brings his laptop, which is
equipped with screen-reading software, so he can locate and patronize nearby
businesses. When a business’s store locator feature is accessible to Gil, he can
discover which of that business’s physical stores he would like to patronize; when
it is not so accessible, he can use a third party’s store locator service that is
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accessible to him to accomplish that end. But it is faster for him to use the website
of the store he wishes to patronize than to leave the website to use a search engine
provided by a third party.
Eager to take advantage of the prescription and coupon benefits provided by
the website and its store locator feature, Gil used his computer to try to access
Winn-Dixie’s website. Because he is blind, when using a computer Gil relies on
screen-reading software, which vocalizes visual information found on the
computer screen. With this software, Gil has successfully used more than 500
websites. The software could not read Winn-Dixie’s website, however; as a result,
approximately 90% of the website was inaccessible to him. Because the website
was inaccessible to him, Gil was unable to request prescription refills online in
advance, digitally link coupons to his rewards card, or use the website’s store
locator feature. Frustrated that Winn-Dixie had not made its website accessible to
visually-impaired customers, Gil stopped shopping at Winn-Dixie and switched to
another pharmacy to fill his prescriptions.
Gil sued Winn-Dixie, alleging that its failure to make its website accessible
to visually-impaired customers violated the ADA. He sought an injunction
requiring Winn-Dixie to modify its website so that it could be used by visually-
impaired individuals.
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The case proceeded to a bench trial. At trial, Gil contended that Winn-
Dixie engaged in disability discrimination by failing to make its website
compatible with screen-reading technology and thus denying visually-impaired
individuals the ability to request advance in-store prescription refills, link coupons
to their customer rewards cards, and access the website’s store locator.
Post-trial, the district court ruled that Winn-Dixie had engaged in disability
discrimination under the ADA. The court found that visually-impaired individuals
could not access Winn-Dixie’s website because it was incompatible with screen-
reading technology. This incompatibility, the district court found, meant that
Winn-Dixie, through its website, offered features and services to the general public
that were inaccessible to Gil, including an “online pharmacy management system,”
“the ability to access digital coupons that link automatically to a customer’s
rewards card,” and a store locator. Doc. 63 at 10.4
In its conclusions of law, the district court addressed the types of conduct
that constitute discrimination under the ADA. The court pointed to the ADA’s
broad statutory language prohibiting discrimination in “the full and equal
4
The district court found that Gil was “credible and forthcoming” and that there were
“virtually no disputes in the testimony and evidence.” Doc. 63 at 1–2. The majority opinion
does not challenge the district court’s factual findings, which we may overturn only if clearly
erroneous. Fed. R. Civ. P. 52(a)(6). The district court’s credibility findings demand particularly
great deference because only the district court had the opportunity to observe Gil’s demeanor as
he was testifying. See Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
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enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation.” Id. at 8 (quoting
42 U.S.C. § 12182(a)). Given the breadth of this language, the district court
concluded, the ADA did more than “merely require” that individuals with
disabilities receive “physical access to a place of public accommodation.” Id. at
10. In arriving at this conclusion, the district court also relied on our precedent
holding that the ADA prohibited “intangible barriers, such as eligibility
requirements and screening rules or discriminatory policies and procedures[,] that
restrict a disabled person’s ability to enjoy the defendant entity’s goods, services
and privileges.” Id. at 9 (quoting Rendon v. Valleycrest Prods., Ltd., 294 F.3d
1279, 1283 (11th Cir. 2002)).
Applying the law to its findings of fact, the district court concluded that
Winn-Dixie had discriminated against persons with visual disabilities by failing to
make its website compatible with screen-reading software. Because Winn-Dixie’s
visually-impaired customers were unable to submit advance prescription refills for
in-store pickup, easily locate and link digital coupons to their customer rewards
cards so that discounts would be applied automatically at checkout, and access the
store locator, the district court concluded that Winn-Dixie had denied them “the
full and equal enjoyment of the goods, services, facilities, privileges, advantages,
or accommodations that Winn-Dixie offer[ed] to its sighted customers.” Doc. 63
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at 10. To remedy this violation, the district court entered a permanent injunction
requiring Winn-Dixie to make its website accessible to visually-impaired
individuals and to ensure that the website complied with established guidelines
governing website accessibility.
II.
A.
After “decades of deliberation and investigation into the need for
comprehensive legislation to address discrimination against persons with
disabilities,” Congress “invok[ed] the ‘sweep of congressional authority’” to pass
the ADA. Tennessee v. Lane, 541 U.S. 509, 516 (2004) (quoting 42 U.S.C.
§ 12101(b)(4)). Following a thorough investigation, Congress engraved its
findings into the ADA’s text. See 42 U.S.C. § 12101(a)(1)–(8). As the Supreme
Court has recognized, those findings have served a “critical[]” role in judicial
construction of the Act’s scope. Sutton v. United Air Lines, Inc., 527 U.S. 471, 484
(1999), abrogated on other grounds by ADA Amendments Act of 2008, Pub. L.
No. 110–325, 122 Stat. 3553 (2008).
Specifically, Congress found that individuals with disabilities “continually
encounter various forms of discrimination, including . . . communication barriers,
. . . failure to make modifications to existing facilities and practices, . . . and
relegation to lesser services, programs, activities, benefits, jobs, or other
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opportunities.” 42 U.S.C. § 12101(a)(5). Given that finding, Congress announced
that “the Nation’s proper goals” regarding individuals with disabilities are to
ensure “full participation, independent living, and economic self-sufficiency for
such individuals.” Id. § 12101(a)(7). To effectuate these broad remedial goals, the
ADA prohibits discrimination in major areas of public life, including employment
(Title I), public services (Title II), and public accommodations (Title III). See
Lane, 541 U.S. at 516–17.
Our focus today is on Title III, which bars discrimination by operators of
places of public accommodation. Title III sets forth a “[g]eneral rule,” language by
now familiar to the reader: “No individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public accommodation
by any person who . . . operates a place of public accommodation.” 42 U.S.C.
§ 12182(a). To clarify that rule’s scope, Title III also sets forth “[g]eneral
prohibition[s],” see id. § 12182(b)(1), and “[s]pecific prohibitions,” see id.
§ 12182(b)(2).
The specific prohibitions provide a non-exhaustive list of “examples of
actions or omissions that constitute [prohibited] discrimination.” A.L. ex rel. D.L.
v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1292 (11th Cir. 2018);
see 42 U.S.C. § 12182(b)(2). One of the specific prohibitions deems it
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discriminatory for a place of public accommodation to “fail[] to take such steps as
may be necessary to ensure that no individual with a disability is excluded, denied
services, segregated[,] or otherwise treated differently than other individuals
because of the absence of auxiliary aids and services,” unless the entity
demonstrates that taking such steps would “fundamentally alter the nature” of the
service, privilege, or advantage offered or “result in an undue burden.” 42 U.S.C.
§ 12182(b)(2)(A)(iii).
In my view, it is clear from that specific prohibition and § 12182(a)’s
general rule that Winn-Dixie violated the ADA. So, there is no need to consider
whether Winn-Dixie’s conduct also ran afoul of § 12182(b)’s other specific
prohibitions or its general prohibitions.
B.
I would hold that Winn-Dixie’s failure to make its website accessible to
visually-impaired individuals is discriminatory under § 12182(b)(2)(A)(iii) and
thus prohibited by § 12182(a). I begin with what is undisputed. First, Gil’s
disability qualifies for protection under the ADA. Second, Winn-Dixie’s physical
stores are public accommodations under the ADA. See 42 U.S.C. § 12181(7)
(including “grocery store[s]” and “pharmac[ies]” whose operations “affect
commerce” within the definition of “public accommodation”). Third, the
technology that integrates a website with the screen-reading software Gil uses
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qualifies as an “auxiliary aid[] and service[]” under the ADA. See 28 C.F.R.
§ 36.303 (providing that “screen[-]read[ing] software,” “accessible electronic and
information technology,” and “other effective methods of making visually
delivered materials available to [visually-impaired] individuals” are “[e]xamples”
of auxiliary aids and services). Fourth, Winn-Dixie does not challenge the district
court’s finding that Gil and other visually-impaired individuals could not access
Winn-Dixie’s website or enjoy, by any other means, the three features of Winn-
Dixie’s website that are relevant to this appeal. Fifth, Winn-Dixie does not argue
that making its website accessible to visually-impaired individuals would
“fundamentally alter the nature of [its offerings]” or “result in an undue burden.”
42 U.S.C. § 12182(b)(2)(A)(iii).
Given this common ground, whether Winn-Dixie violated the ADA turns on
whether it was “necessary” for Winn-Dixie to make its website accessible to
visually-impaired individuals to ensure they were not “denied services,
segregated[,] or otherwise treated differently than [sighted] individuals” in
deprivation of their right to the “full and equal enjoyment of the goods, services, . .
. privileges, [or] advantages . . . of [Winn-Dixie’s stores].” Id. § 12182(a),
(b)(2)(A)(iii). In my view, the answer is yes, and it follows from our precedent.
To determine whether an accommodation is “necessary” under
§ 12182(b)(2)(A), we consider “how the[] [public accommodation’s offerings] are
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used by nondisabled [customers]” and then ask whether the operator of the public
accommodation has provided its disabled customers with a “like experience and
equal enjoyment.” A.L., 900 F.3d at 1296 (vacating in part grant of summary
judgment because a factual dispute existed as to whether a theme park’s program
creating a tailored experience for disabled patrons offered an experience
comparable to the experience offered to nondisabled patrons). If the operator of a
public accommodation has failed to provide disabled customers with “an
experience comparable to that of [nondisabled customers],” then an
accommodation is necessary. Id. at 1294 (quoting Baughman v. Walt Disney
World Co., 685 F.3d 1131, 1135 (9th Cir. 2012)); 5 see also Or. Paralyzed Veterans
of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1133 (9th Cir. 2003) (concluding
that an accommodation was necessary when a movie theater, which offered seating
to wheelchair-bound patrons in the front row only, failed to afford these patrons a
viewing experience comparable to that offered to nondisabled patrons by denying
them access to “comfortable viewing locations”).
C.
Under the standard established in A.L., an accommodation was necessary
because Winn-Dixie failed to provide its disabled customers with an experience
5
In A.L. we adopted the Ninth Circuit’s approach in Baughman. See A.L., 900 F.3d at
1296.
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comparable to the one it provided nondisabled customers. A.L. requires us to
compare Winn-Dixie’s treatment of sighted customers—who were able to obtain
express prescription refills, link coupons electronically to their rewards cards, and
use the store locator feature—with its treatment of visually-impaired customers,
who could not use those features. See 900 F.3d. at 1296. So, let us compare.
First, consider the experience of refilling prescriptions for visually-impaired
customers versus that of sighted customers. Visually-impaired customers had to
request prescription refills inside Winn-Dixie stores. The customer had to go to
the store and wait in line to speak to a pharmacist. After waiting in line, the
customer may (like Gil) have had to verbally request his medication by name in a
public setting where other customers might overhear. Once the refill was
requested, the pharmacy had to take certain steps required by state law before
dispensing the prescription. For example, under Florida law (which governed the
Winn-Dixie pharmacies that Gil patronized) pharmacists were required to verify
that the prescription authorized a refill, consider whether the prescription
medication could cause a potential adverse reaction or an interaction with other
medications the customer was taking, and ensure that the appropriate dose and
quantity were provided. 6 In addition, pharmacy employees had to determine
6
See, e.g., Fla. Admin. Code Ann. r. 64B16-27.211 (limiting the number of times a
pharmacist can refill a particular prescription); Fla. Stat. § 465.003(6) (requiring that before a
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whether the customer had a prescription drug benefit plan that covered the refill
and how much the customer should be charged. According to unrefuted evidence
in the record, customers (like Gil) who requested refills in Winn-Dixie’s store
might wait 20 to 30 minutes until the refill was ready.
By contrast, a sighted customer who submitted an online prescription refill
request through Winn-Dixie’s website was offered a streamlined, faster process
that offered greater privacy. As to privacy, when a customer initiated a
prescription refill in the store, she may have had to verbally request the refill. As
Gil explained, this process made him “very uncomfortable” because others
potentially could overhear him discussing his health conditions and medication
needs with pharmacy employees. Doc. 65 at 44. Sighted customers could avoid
verbally requesting their refill by using Winn-Dixie’s website.7
As to time saved, a customer requesting her refill online benefitted from the
pharmacist checking her insurance coverage, verifying that the prescription and
refill were authorized, and preparing the prescription before her arrival. Upon
arrival, the medication was ready for pickup. Indeed, Winn-Dixie touted the time
pharmacist dispenses a drug she must “interpret and assess the prescription order for potential
adverse reactions [and] interactions”); Fla. Admin Code Ann. r. 64B16-27.1001(3), (4) (setting
forth a pharmacist’s responsibilities when filling a prescription).
7
This privacy concern is particularly acute for visually-impaired customers, who may be
less able than sighted customers to determine whether bystanders are close enough to overhear
them.
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savings that online customers enjoyed, advertising that its website gave customers
access to “express re-fill[s].” Doc. 65 at 87 (emphasis added).
As the majority concedes, “nothing in the record” suggests that Winn-Dixie
offered customers any means other than its website to request prescription refills
“in advance of arriving at the physical store.” Maj. Op. at 23 n.18. After
comparing the experiences of Winn-Dixie’s disabled and nondisabled customers
regarding express prescription refills, I cannot understand how the majority
concludes that disabled customers, like Gil, were offered the equal treatment and
“like experience” that A.L. requires. 900 F.3d at 1296–98.8
Second, consider the coupon experience for visually-impaired customers
versus that of sighted customers. When a store accepts manufacturers’ coupons, it
allows its customers to take advantage of discounts on the products they purchase.
A visually-impaired customer who wanted to use manufacturers’ coupons to
8
To support its conclusion that there was no ADA violation here because an accessible
website was not “necessary” within the meaning of § 12182(b)(2)(A)(iii), the majority opinion
does not discuss A.L., our authoritative precedent on the matter, and instead relies on what the
majority concedes is “dicta” from PGA Tour. Maj. Op. at 29. That dicta explains that an
accommodation's necessity “might” depend on whether the plaintiff could “uncomfortabl[y]”
enjoy the public accommodation’s offerings or whether such enjoyment was “beyond [his]
capacity.” PGA Tour, 532 U.S. at 682. The majority opinion suggests that this dicta supports
the proposition that an accommodation was not necessary in this case because Gil was “able to
participate [in Winn-Dixie’s services, privileges, and advantages], even if under ‘uncomfortable
or difficult’ conditions.” Maj. Op. at 29 (quoting PGA Tour, 532 U.S. at 682). But whether it
was merely “uncomfortable” for Gil to enjoy Winn-Dixie’s offerings or whether such enjoyment
was “beyond [his] capacity” turns on how we conceptualize those offerings. As I explain later,
the majority opinion’s conception of Winn-Dixie’s offerings under the ADA is incorrect. The
PGA Tour dicta cited by the majority opinion therefore gives it no refuge.
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purchase items at a Winn-Dixie store had to page through a newspaper, magazine,
or other print source to find coupons for products he wanted to purchase, clip the
coupons, bring them to the store, and present them to a cashier at checkout—
needing to ask for the help of another when he could not perform these tasks
himself.
By contrast, Winn-Dixie’s website offered sighted customers an improved
and more convenient way to use coupons that was available by no other means. A
sighted customer could visit the website, which centralized manufacturers’
coupons, and digitally link the desired coupons to his account. Then, when he
scanned his customer rewards card at checkout, the coupon discounts were applied
automatically to his order. There can be no doubt that, with its coupon-linking
tool, available only to those who could use Winn-Dixie’s website, Winn-Dixie
failed to offer like treatment to its disabled and nondisabled customers. Rather, it
privileged nondisabled customers, offering them a more convenient and effective
way to obtain discounts inside Winn-Dixie stores.
Third, consider the store locator experience for visually-impaired customers.
On Winn-Dixie’s website, sighted customers could use the store locator feature to
navigate virtually among the hundreds of Winn-Dixie stores to determine which
location would be most convenient for them to patronize. Typically, a store locator
feature not only helps customers get to stores but also informs them of the stores’
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hours, contact information, and specific services offered. Winn-Dixie’s store
locator was inaccessible to those with visual impairments. When a website’s store
locator feature is inaccessible to visually-impaired customers, they must gather the
information provided by the feature elsewhere. Undisputed evidence in the record
established that it would be more cumbersome for Gil to gather the information
provided by the website’s store locator from a third party’s website. Toggling
between multiple websites is more difficult for individuals relying on screen-
reading software than it is for sighted individuals. This Court, albeit in an
unpublished opinion, has already concluded that a place of public accommodation
discriminates within the meaning of § 12182(b)(2)(A)(iii) when it offers a store
locator feature on its website that is inaccessible to visually-impaired customers.
See Haynes v. Dunkin’ Donuts LLC, 741 Fed. App’x. 752, 753–54 (11th Cir. 2018)
(unpublished). I agree with Haynes.
To be sure, the ADA does not require that places of public accommodation
provide identical experiences for disabled and nondisabled patrons. See A.L., 900
F.3d at 1294–95. But by offering inferior treatment to its visually-impaired
customers with respect to prescription refills, digital coupons, and its store locator,
Winn-Dixie failed to provide them with an “experience comparable to that of” its
sighted customers. Id. at 1294 (internal quotation marks omitted); see also 42
U.S.C. § 12182(b)(2)(A)(iii) (requiring that disabled individuals are not “excluded,
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denied services, segregated[,] or otherwise treated differently than other
individuals because of the absence of auxiliary aids”) (emphasis added). Because
of that failure, it was “necessary” for Winn-Dixie to provide an accommodation
unless providing such an accommodation would “fundamentally alter the nature of
[Winn-Dixie’s offerings]” or result in an “undue burden.” 42 U.S.C.
§ 12182(b)(2)(A)(iii). As I have explained, Winn-Dixie neither provided an
accommodation nor argued that providing such an accommodation would
“fundamentally alter” its offerings or result in an “undue burden.” Its failure to
make its website accessible to visually-impaired customers thus was discrimination
under § 12182(b)(2)(A)(iii) that is barred by § 12182(a).
III.
The majority opinion resists this conclusion with three arguments. First, it
argues that Gil was not discriminated against “in the full and equal enjoyment” of
Winn-Dixie’s services, privileges, and advantages because Gil was able to enter
Winn-Dixie’s stores, refill prescriptions, and use coupons. Second, it argues that
caselaw suggests an intangible barrier to a public accommodation’s offerings (like
the website’s incompatibility with Gil’s screen-reading software) violates the ADA
only when that barrier prevents disabled individuals from entering the public
accommodation’s sole access point or accessing one of its points of sale. Third, it
argues that Winn-Dixie’s failure to provide a website accessible to visually-
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impaired individuals did not constitute discrimination under § 12182(b)(2)(A)(iii)
because Gil was prevented from effectively communicating only with Winn-
Dixie’s website, not its physical stores. Each of these arguments is unpersuasive. I
address them in turn.
A.
First, the majority opinion contends that Winn-Dixie did not violate
§ 12182(a) because “Gil [was] able to enjoy fully and equally ‘the goods, services,
facilities, privileges, advantages, or accommodations of’ Winn-Dixie’s physical
stores.” Maj. Op. at 33 (quoting 42 U.S.C. § 12182(a)). To arrive at this
conclusion, the majority asserts, as it must, that under the ADA the only relevant
services, privileges, or advantages Winn-Dixie offered were “the ability to refill a
prescription” and “[redeem] coupons.” Id. at 20 n.16. After positing that the only
relevant services, privileges, or advantages offered by Winn-Dixie are “filling
prescriptions and using coupons,” the majority opinion concludes that “Gil was
able to enjoy fully and equally [those] services” and therefore Winn-Dixie did not
violate the ADA. Id. at 26; see also id. at 23 (asserting that because “nothing
prevent[ed] Gil from shopping at [Winn-Dixie’s] physical store[s],” “refilling his
prescriptions,” or “us[ing] paper coupons,” Gil was not denied full and equal
access to Winn-Dixie’s services, privileges, or advantages).
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This argument is doubly flawed. Its premise—that, for ADA purposes, the
relevant services, privileges, and advantages offered by Winn-Dixie were limited
to “filling prescriptions and using coupons”—is wrong. And even if that premise
were correct, the majority opinion’s conclusion does not follow from it. For even
if the majority is correct that the relevant services, privileges, or advantages were
“filling prescriptions and using coupons,” Gil was not “able to enjoy fully and
equally [those] services,” id. at 26, because he could enjoy only different—and
markedly inferior—versions of them. I first explain why the majority opinion’s
conception of what constitutes a service, privilege, and advantage under the ADA
contradicts the Act’s plain text. Then, I show why, even under the majority
opinion’s understanding of those terms, its conclusion does not follow.9
The ADA prohibits discrimination “in the 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 meaning of this provision
is a question of statutory interpretation. “As with any question of statutory
interpretation, we begin by examining the text of the statute to determine whether
its meaning is clear.” Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002) (en
9
In responding to the majority opinion’s arguments, I will not discuss the store locator
feature because the majority opinion does not discuss it. But the same reasons that explain why
the website’s express prescription refill and coupon-linking features are “services,” “privileges,”
or “advantages” within the meaning of the ADA apply also to the store locator feature.
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banc). “In construing a statute we must begin, and often should end as well, with
the language of the statute itself.” Id. (internal quotation marks omitted). The
ADA does not define the terms “services,” “privileges,” or “advantages,” so we
“look to the common usage of [these] words for their meaning.” In re Walter
Energy, Inc., 911 F.3d 1121, 1143 (11th Cir. 2018) (internal quotation marks
omitted).
To determine the common usage and ordinary meaning of terms, we look to
dictionary definitions for guidance. Id. The dictionary definition of “service” is
“useful labor that does not produce a tangible commodity.” Service, Webster’s
New International Dictionary (3d ed. 1961). 10 A “privilege” is “a right . . . granted
as a peculiar benefit, advantage, or favor.” Privilege, Webster’s New International
Dictionary (3d ed. 1961). And an “advantage” is “a more favorable or improved
position or condition.” Advantage, Webster’s New International Dictionary (3d ed.
1961).
Under these definitions, Winn-Dixie offered “services,” “privileges,” and
“advantages” when it empowered customers to request express prescription refills
and link coupons to their rewards cards on its website. Winn-Dixie’s prescription
offering, by which its customers could pick up prescription refills they had
10
Although it appears that the current meaning of these terms is not much different, here
I use dictionary definitions that were current in 1990 when the ADA was passed by Congress and
signed by the President.
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requested in advance online, was a service. In common parlance, a service is
provided when a customer requests a service provider to perform an activity, the
service provider performs that activity, and the customer pays the service provider.
For Winn-Dixie’s customers who used the online prescription refill tool, a critical
step in that process—the requesting of the service—occurred online. Thus, it
makes no sense for the majority opinion to conceive of Winn-Dixie’s prescription
service as completely untethered from the website.
Even more clearly perhaps, the prescription refill and coupon-linking tools
are “privileges” or “advantages.” As the comparison above demonstrates, ordering
express prescription refills from the privacy of one’s home and using the coupon-
linking tool to more conveniently take advantage of discounts “benefit[s]” and
“improve[s] [the] position or condition” of Winn-Dixie’s customers. That is, after
all, precisely why Winn-Dixie provided its customers with those features.
The majority opinion does not contest my understanding of the plain
meanings of the terms “service,” “privilege,” and “advantage.” Rather, it argues
that under my interpretation “virtually anything . . . might be deemed a ‘service,’
‘privilege’ or ‘advantage’ for purposes of Title III” and thus ADA liability would
extend beyond Congress’s intent. Maj. Op. at 28. The majority opinion tells us
that, when viewed “in context and with a view to the overall statutory scheme, it is
clear that Title III will not bear [my] sweeping interpretation.” Id. But it does not
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tell us what contextual or structural clues in the ADA the majority opinion has
discovered that warrant casting aside the ordinary meaning of § 12182(a)’s terms.
Indeed, looking beyond the terms “services,” “privileges,” and “advantages”
only further demands adherence to those terms’ plain meanings. At the micro
level, § 12182(a) clarifies that it not only bars discrimination occurring “in” places
of public accommodation; it also bars discrimination in the “goods, services,
facilities, privileges, advantages, or accommodations” offered by places of public
accommodation, like Winn-Dixie stores. 42 U.S.C. § 12182(a) (barring
discrimination in full and equal enjoyment of the “privileges[] or advantages . . . of
any place of public accommodation”) (emphasis added); see also Robles v.
Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019) (“[Section
12182(b)(2)(A)(iii)] applies to the services of a place of public accommodation,
not services in a place of public accommodation”); id. at 905–06 & n.6 (holding
that § 12182(b)(2)(A)(iii)’s auxiliary aid requirement applies to websites when
their inaccessibility impedes access to a physical location’s services, “even though
customers predominantly access [websites] away from [places of public
accommodation]”). Winn-Dixie’s express prescription refill service, by which
customers could order refills to be picked up at a specific Winn-Dixie location, is
unquestionably a privilege or advantage “of” that location.
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At the macro level, the ADA’s text demonstrates that Congress’s intent in
passing the statute was to comprehensively eradicate disability discrimination, see
§ 12101(b)(1), to ensure “full participation, independent living, and economic self-
sufficiency” for Americans with disabilities. 42 U.S.C. § 12101(a)(7). Congress
effectuated the ADA’s “broad mandate,” “comprehensive character,” and
“sweeping purpose,” see PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001)
(internal quotation marks omitted), by prohibiting at least eight different forms of
discrimination, see § 12182(b), “in the 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 ADA is a sweeping piece of
legislation; it is hardly surprising that its terms prohibiting discrimination are broad
and inclusive. To interpret them otherwise offends not only the principle that we
should interpret terms according to their ordinary meaning, but also the
“fundamental canon of statutory construction that the words of a statute must be
read in their context and with a view to their place in the overall statutory scheme.”
Gundy v. U.S., 139 S. Ct. 2116, 2126 (2019) (internal quotation marks omitted).
Because the ability to request express prescription refills and electronically
link coupons to one’s rewards card via the website was a “service,” “privilege,”
and “advantage” offered by Winn-Dixie’s stores, the majority opinion errs in
concluding that Gil could “enjoy fully and equally” Winn-Dixie’s offerings
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because he could refill his prescriptions and use coupons at Winn-Dixie’s stores.
Maj. Op. at 33. In effect, the majority opinion’s conception of Winn-Dixie’s
offerings distorts the meaning of “services” under the Act and strikes the words
“privileges” and “advantages” from it altogether, nullifying Congress’s decision to
bar discrimination not only relating to “goods, services, [and] facilities” but also
that relating to “privileges [and] advantages.” 42 U.S.C. § 12182(a).11
For these reasons, the majority opinion’s constricted conception of Winn-
Dixie’s offerings contradicts the ADA’s text. But even if the majority opinion
were correct that the only services, privileges, or advantages Winn-Dixie offered
were its in-store prescription and coupon services, it would still be wrong to
conclude that “Gil was able to enjoy fully and equally” those services. Maj. Op. at
33. Gil’s enjoyment of Winn-Dixie’s in-store prescription and coupon services
was not full and equal but partial and lesser. While Winn-Dixie’s sighted
customers received greater privacy protections and were relieved of the need to
11
The majority opinion’s concern that my interpretation of the words “service,”
“privilege,” and “advantage” is too “sweeping”—and will therefore expand § 12182 liability too
far—is misplaced for another reason as well. See Maj. Op. at 28–29. Congress expressly
included safeguards in § 12182(b)(2)(A)(iii) to protect operators of public accommodations from
liability when accommodating disabled individuals is too onerous: when accommodations
would “fundamentally alter the nature of the [offering]” or “result in an undue burden.” 42
U.S.C. § 12182(b)(2)(A)(iii). As I noted, these exceptions to liability are not implicated here
because Winn-Dixie has not argued that either of them applies. Thus, the majority opinion errs
by distorting the plain meaning of the terms “service,” “privilege,” and “advantage” based on a
fear of overextending Title III liability even though Congress addressed that concern by
including these exceptions.
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wait in-store for pharmacists to refill their prescriptions, Gil had to verbally request
prescription refills in-store and endure extended wait times. While Winn-Dixie’s
sighted customers could collect coupons online and redeem them instantly at
checkout, Gil was left to find and assemble physical coupons and present them by
hand. As a result of his disability and Winn-Dixie’s inaccessible website, Gil
received inferior prescription and coupon services from Winn-Dixie. The ADA
bars precisely that result. See 42 U.S.C. § 12182(a); see also id. § 12101(a)(5)
(expressing Congress’s intent to end the “relegation [of Americans with
disabilities] to lesser services”). 12
B.
12The majority opinion points out that Winn-Dixie is “not required to have a website, and
that it could simply remove the [web]site.” Maj. Op. 23 n.17. True, but irrelevant. Federal
antidiscrimination laws typically do not require public accommodations to provide goods,
services, or privileges. Instead, those laws decree that, if such offerings are provided, they may
not be provided in a discriminatory manner. For example, the Civil Rights Act of 1964 did not
require stores to install lunch counters. But once they did, the Act entitled all persons to “full
and equal enjoyment of th[os]e goods, services, facilities, privileges, advantages, and
accommodations” that the stores chose to provide. 42 U.S.C. § 2000a(a).
That majority’s observation that “Gil is at no less of a disadvantage than a sighted
customer who does not have internet access” is also irrelevant Maj. Op. at 28 n.20. The ADA
requires us to compare Winn-Dixie’s treatment of nondisabled guests ready to enjoy its services
to its treatment of disabled guests ready to enjoy its services. A.L., 900 F.3d 1270 (“[P]ublic
accommodations must start by considering how their facilities are used by nondisabled guests
and then must take reasonable steps to provide disabled guests with a like experience.”) (internal
quotation marks omitted). It makes no difference whether Winn-Dixie treated nondisabled
guests ready to enjoy its services like other individuals who, because of their personal
circumstances, were not ready, or did not want, to enjoy its services.
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Second, the majority opinion appears to resist the conclusion that Winn-
Dixie violated the ADA by grafting a rule upon the Act that is supposedly derived
from caselaw. The majority opinion does not dispute that it is settled law in this
circuit that violations of § 12182 can result from “intangible barriers” that do not
“occur on site [of a place of public accommodation].” Rendon, 294 F.3d at 1283–
84; see also Maj. Op. at 25–26 n.19. Nevertheless, the majority opinion maintains
that offsite intangible barriers cannot result in a § 12812 violation unless they bar
customers with disabilities from the public accommodation’s “sole access point” or
obstruct those customers from accessing one of its “point[s] of sale.” Maj. Op. at
22–23. The majority opinion apparently derives this rule from two cases in which
federal courts of appeals held that plaintiffs could state a claim under Title III
when a technological barrier prevented them from accessing the offerings of a
place of public accommodation. See Rendon, 294 F.3d at 1283–86 (aspiring game
show contestants stated a claim under Title III when an automated telephone
system prevented them from enjoying the privilege of trying out for the show);
Robles, 913 F.3d at 905–06 (holding that the ADA applied to a pizza restaurant’s
website and app because those technologies “connect[ed] customers to the
[restaurant’s] goods and services” and the technologies’ alleged inaccessibility
“impede[d] access to [the restaurant’s offerings]”).
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The majority opinion’s discussion of Rendon and Robles therefore cannot
advance its position. Those cases held only that plaintiffs can state a Title III claim
when inaccessible technologies prevent them from accessing a public
accommodation’s offerings; they had no occasion to consider whether a public
accommodation might also violate the ADA when it offers a website inaccessible
to visually-impaired customers that serves as the only way for a customer to access
in-store privileges or advantages. At best they established only a sufficient, not a
necessary, condition for stating a claim.13
C.
Third, the majority opinion argues that Winn-Dixie did not violate
§ 12182(b)(2)(A)(iii) because that provision prohibits the absence of auxiliary aids
and services only when their absence prevents disabled individuals from
“effective[ly] communicat[ing]” with physical stores. See Maj. Op. at 24–25
(quoting 28 C.F.R. § 36.303(c)(1)). According to the majority opinion, because
13
In any event, the majority opinion is wrong in asserting that Rendon and Robles are
distinct from this case in a legally significant way. See Maj. Op. at 21–22, 27. It is true that, in
Rendon, unlike in this case, the inaccessible technology was the “sole access point for
individuals to [seek] the privilege.” Id. at 21. And it is true that, in Robles, unlike in this case,
the public accommodation “[made] sales through its website and app.” Id. at 28. But those
distinctions are of no moment to the ADA, which prohibits discrimination that not only
“exclude[s]” individuals with disabilities but also discrimination that “treat[s] [them] differently”
and denies them the “full and equal enjoyment of [the offerings of public accommodations].” 42
U.S.C. § 12182; see also A.L., 900 F.3d at 1294–98 (explaining that places of public
accommodation must provide disabled patrons with an experience comparable to the one they
provide nondisabled patrons).
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only Winn-Dixie’s stores (and not its website) are “place[s] of public
accommodation,” Gil’s “inability to communicate with and access the services
available on the website” does not constitute a violation of § 12182(b)(2)(A)(iii)
because Gil could “communicate effectively with, or access the services offered in,
the physical stores.” Id. at 25–26. The majority opinion reasons that, because Gil
was “able to enjoy fully and equally the services in question—filling prescriptions
and using coupons—in Winn-Dixie’s physical stores,” there is “no basis for
concluding that Winn-Dixie violated § 12182(b)(2)(A)(iii).” Id. at 26.
This chain of reasoning suffers from at least two defects. First, the argument
is premised upon the majority opinion’s position that “the services available on
[Winn-Dixie’s] website” are untethered from the services offered by Winn-Dixie’s
store. Id. at 25. As I have explained, that premise is flawed. Winn-Dixie offered
in-store services, privileges, and advantages—namely, the ability to request
express prescription refills and link coupons to one’s account—through (and only
through) its inaccessible website.
Second, the argument rests upon the majority opinion’s misconception that
Winn-Dixie’s website is not a tool of communication that Winn-Dixie provided to
convey information to, and receive information from, customers. By refusing to
recognize that the website is, at least in part, a tool of communication between
Winn-Dixie and its customers, the majority opinion arrives at the striking
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conclusion that, although Gil proved at trial that he could not comprehend or
communicate with the website, § 12182(b)(2)(A)(iii) was not violated because Gil
“never asserted that he was [un]able to communicate effectively with . . . the
physical stores.” Id.
But contrary to the majority opinion’s understanding, Gil’s inability to
access the website prevented him from effectively communicating with Winn-
Dixie’s stores in at least two ways. The website’s inaccessibility prevented Gil
from (1) accessing the information that Winn-Dixie was conveying to its sighted
customers and (2) conveying information to Winn-Dixie. For example, there was
no way for Gil, unlike Winn-Dixie’s sighted customers, to communicate with a
Winn-Dixie store that he would like to have a specific prescription refilled at a
specific time. And there was no way for Gil, unlike Winn-Dixie’s sighted
customers, to communicate with a Winn-Dixie store that he would like to link
specific coupons to his rewards card so they could be applied automatically when
he purchased discounted goods. Thus, the website’s inaccessibility prevented Gil
from effectively communicating with Winn-Dixie’s stores, violating the plain
terms of the regulation requiring effective communication. 28 C.F.R.
§ 36.303(c)(1) (“A public accommodation shall furnish appropriate auxiliary aids
and services where necessary to ensure effective communication with individuals
with disabilities.”).
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Put differently, individuals and businesses communicate with each other by
using communication technologies, like websites, phones, and apps. Therefore, the
majority opinion’s contention that Gil’s inability to access the website prevented
him from communicating with only the website—and not Winn-Dixie’s physical
stores—defies reality. A customer’s ability to access a communication technology
and his ability to communicate effectively with a store are not unrelated
propositions, as the majority opinion suggests. Rather, those propositions are
causally related. Because Gil was unable to use Winn-Dixie’s website, he was
unable to effectively communicate with Winn-Dixie’s stores.
The regulation requiring effective communication provides that “[a] public
accommodation shall furnish appropriate auxiliary aids and services where
necessary to ensure effective communication with individuals with disabilities.”
28 C.F.R. § 36.303(c)(1). An auxiliary aid, like a website compatible with screen-
reading software, was necessary to ensure effective communication between Gil
and Winn-Dixie’s physical stores. By failing to furnish that aid (or any
alternative), Winn-Dixie ran afoul of § 36.303.14
14
I agree with the majority opinion that there is no reason to superimpose a “nexus”
standard onto the inquiry into whether a place of public accommodation violates the ADA when
it offers a service, privilege, or advantage that can be attained solely by accessing its website.
See Maj. Op. at 26–27. We need only apply the statutory text and ask whether such a website’s
incompatibility with screen-reading software prevents disabled customers from fully and equally
enjoying the offerings of a place of public accommodation. See 42 U.S.C. § 12182(a).
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IV.
The majority opinion holds that Title III does not require public
accommodations to provide disabled individuals with the same in-store privileges
and advantages that they provide nondisabled individuals when those in-store
privileges and advantages are offered through a website. I disagree. Our
constitutional role is “to apply statutory language, not to rewrite it.” Harris v.
Garner, 216 F.3d 970, 976 (11th Cir. 2000) (en banc). The statutory language at
issue mandates that disabled individuals are not, without legal justification that is
absent from this case, “excluded, denied services, . . . or otherwise treated
differently . . . because of the absence of auxiliary aids and services.” 42 U.S.C.
§ 12182(b)(2)(A)(iii). And it entitles disabled individuals to the “full and equal
enjoyment” of a public accommodation’s offerings. Id. § 12182(a). The majority
opinion’s declaration that Gil could fully and equally enjoy Winn-Dixie’s offerings
does not make it so. Winn-Dixie treated Gil as a second-class customer, offering
him different and inferior prescription and coupon services than it provided to its
nondisabled customers.
I fear the majority opinion’s errors will have widespread consequences.
Places of public accommodation, such as stores and restaurants, increasingly use
websites and apps to offer their customers safer, more efficient, and more flexible
access to goods and services in physical stores. As I read it, the majority opinion
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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. That result cannot
be squared with the ADA. Respectfully, I dissent.
67