A split panel of the 11th Circuit in Atlanta recently ruled that online sites for businesses offering website services to the public are not considered "places of accommodation" under the Americans With Disabilities Act (ADA). This ruling has been expected for four years since the plaintiffs in Gil v. Winn-Dixie Stores sued for the chain's website not complying with Title III of the ADA.

Under the new ruling, websites do not have to follow the Title III ADA requirement for public accommodation.

Despite its ruling, the appeals court's decision states "inaccessibility online can be a significant inconvenience," regarding the access for visually impaired patrons who use screen-reader software and could not use the public website at the Winn-Dixie supermarkets. This decision vacates a prior federal judge's ruling that the supermarket chain store violated ADA by not providing the screen reader software to patrons.

The panel appeals court ruling, in a two-to-one decision, means Winn-Dixie cannot be held liable under Title III of the ADA for having a website that is not accessible to people with visual issues.

Title III of the ADA states the law specifically "prohibits any discrimination based on the basis of disabilities in places of public accommodations, commercial facilities and private entities that offer certain examination and courses related to educational and occupational certification."

Businesses including supermarkets, public parks, schools, museums, movie theaters, hotels, restaurants, and bars fall under this category of rules for Title III of the ADA.

However, since the location of the space is online, the majority of judges on the panel ruled the online website does not fall under Title III of the ADA.

U.S. Circuit Judge Elizabeth Branch, in her brief for the majority, said, "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."

In their decision, the justices wrote that Winn-Dixie not providing "auxiliary aids" on their public website doesn't create a barrier that will exclude customers from shopping at the supermarket chain.

Also of importance in this decision is what has NOT been included: online sales. The Winn-Dixie site does not offer any purchasing options but instead consists of a prescription service and a discount coupon service. This omission of any online purchasing in the ruling does not impact Title III of ADA for public websites with purchasing portals.

The ruling states, "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."

The lone dissenting judge, U.S. Circuit Judge Jill Pryor, wrote a thirty-four-page document in response to the ruling. Pryor wrote that Winn-Dixie denies equal treatment of visually impaired people by not providing screen reader software in the stores.

She wrote that visually disabled customers do not have "the full and equal enjoyment of services, privileges, and advantages offered by Winn-Dixie stores."

In 2017, a Florida federal judge agreed with blind Winn-Dixie patron Juan Carlos Gil, who sued the chain in 2016 under Title III of the ADA.

Gil alleged he could not access the supermarket's website since it was not compatible with screen-reader software, used by the blind plaintiff as an audio component that reads content he cannot see.

In particular, Gil wanted to use Winn-Dixie's online service to refill a prescription and could not, since the site did not offer screen reader software. Gil told the judge he was uncomfortable going to the pharmacist in person because he did not want others in line to hear his personal medical information.

In the 2017 ruling, U.S. District Judge Robert Scola Jr. agreed with Gil. In his decision, Judge Scola Jr. said the Winn-Dixie site is integrated into the supermarket's store and that the "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" could not be accessed by the blind patron.

Justice Pryor noted a prior 11th Circuit decision in 2018, the 11th Circuit's 2018 decision in A.L. ex rel. D.L. v. Walt Disney Parks & Resorts U.S., Inc., in her dissent. This lawsuit concerned an autistic person who could not wait in lines for access to the parks and requested instant access due to his disability.

"After comparing the experiences of Winn-Dixie's disabled and non-disabled 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," Pryor said.

With this controversial ruling that overturned a federal judge's decision in 2018, plus others including the case A.L. v Walt Disney case, this topic may reach the highest court in the land.

The plaintiff's attorneys said they would appeal to the Supreme Court.