Case Information
*1 Before JILL PRYOR and BRANCH, Circuit Judges, and REEVES, [*] District Judge.
BRANCH, Circuit Judge:
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”). After a bench trial, the district court
found that Winn-Dixie’s website violated the ADA.
Gil v. Winn-Dixie Stores, Inc.
,
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 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 “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.
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 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.
,
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 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. 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.
,
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. 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.
,
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
,
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. 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
,
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
,
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.
1. Is the website, in and of itself, a place of public accommodation under Title III?
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
,
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).
Title III then provides more specific examples of what constitutes discrimination for purposes of § 12182(a). Id. § 12182(b)(2)(A)(i)-(v). The only provision relevant to this appeal is § 12182(b)(2)(A)(iii), which provides that 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;
(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), has provided a detailed explanation 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
,
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). 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. 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
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. 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.
,
meaning of Title III is that a public accommodation is a place.”
Ford v. Schering-Plough Corp.
,
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.
,
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 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).
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.”
stores, that are at issue in this case are the ability to refill a prescription and the redemption of coupons.
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.
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. 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- Dixie customer. 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,
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.
See Rendon
,
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.
,
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
“
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
,
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
,
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.” 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
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
,
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.
,
VACATED and REMANDED.
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.
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).
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.
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.
,
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
,
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 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 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.
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.
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 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 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
,
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
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
,
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.
,
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 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
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.
,
C.
Under the standard established in
A.L.
, an accommodation was necessary
because Winn-Dixie failed to provide its disabled customers with an experience
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
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. In addition, pharmacy employees had to determine 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.
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). 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.
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.
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 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’ 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, 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- 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).
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.
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
,
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). 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 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 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
,
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
,
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 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).
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 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”).
B.
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
,
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.
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 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 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.”).
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.
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
,
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 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.
Notes
[*] Honorable Danny C. Reeves, United States District Chief Judge for the Eastern District of Kentucky, sitting by designation.
[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] 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.”
[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).
[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.
[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.
[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.
[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.
[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).
[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
[14] Notably, the dissent does not challenge this holding.
[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
[17] At oral argument, Gil agreed that Winn-Dixie is not required to have a website, and that it could simply remove the site.
[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.
[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
,
[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.
,
[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
,
[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.
[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
[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.
[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
,
[5] In A.L. we adopted the Ninth Circuit’s approach in Baughman . See A.L. , 900 F.3d at 1296.
[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
[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
,
[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.
[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.
[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.
[12] The 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.
,
[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.
,
[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).