An Update on Website Accessibility Under the ADA

The decision by the United States District Court for the Southern District of Florida in Gil v. Winn-Dixie Stores, Inc. undoubtedly had a direct impact on the subsequent increase in the filing of website accessibility cases in Florida. To summarize, the court, in Gil found that websites were places of public accommodation and that Winn-Dixie’s website violated the ADA. 

Winn-Dixie took an appeal of the trial court decision to the 11^th Circuit Court of Appeals. The 11^th Circuit reversed, holding that a website inaccessible to the visually impaired was not an ADA violation in that public accommodations under the ADA merely included physical structures and did not also include websites. The appellate court went on to conclude that Winn-Dixie’s website was not a barrier to a visually impaired person’s ability to access the services, goods, etc. at one of Winn-Dixie’s actual stores.

Thereafter in December of 2021, and after Gil had filed a petition for re-hearing, the 11^th Circuit vacated its own prior opinion reversing the trial court but vacated it on procedural or technical grounds, finding that the case was moot because an existing injunction had expired before the court’s original decision. The case was remanded back down to the trial court to enter a formal order dismissing the action.

Accordingly, the current landscape for website accessibility cases, at least in Florida, is in all likelihood—or at least arguably—what it was prior to the trial court’s decision in Gil. Some might say that it is as clear as mud at this point, as we touched on back in 2018 when lawsuits under the ADA had started appearing far more frequently. Thus, the comfort that defense attorneys in these matters took from the original appellate decision was essentially eliminated or reduced by the subsequent vacating of that original decision.

It remains to be seen what will happen next. Plaintiffs’ counsel will presumably continue to argue that websites are places of public accommodation; defense counsel will argue the contrary and point to the fact that the 11^th Circuit did not reverse its ruling that websites are not places of public accommodation but merely vacated its ruling on mootness grounds.

The reach of Gil is confined to the 11^th Circuit and the trial courts encompassed by it, including the federal courts in Florida. Its reach does not include, for example, cases filed in New York for violations of the ADA and the state and municipal equivalents of the ADA, where cases continue to be filed in large volume.

On a related note, the United States Supreme Court, for the first time in many years, has agreed to hear an ADA case to resolve a split between circuit courts regarding whether a “tester” plaintiff, i.e., one who has no intention of frequenting the business sued, has standing to sue under the ADA. Counsel who frequently represent both plaintiffs and defendants will be watching closely for the High Court’s decision.