Gil v. Winn-Dixie Appeal: Does the ADA Still Cover Websites After 11th Circuit Decision?

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A noteworthy decision was passed down on April 7, 2021 from the United States Court of Appeals for the Eleventh Circuit:

“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.”

This decision overturns the trial court’s ruling that Winn-Dixie’s website violated the ADA because the website had accessibility deficiencies.

For those keeping score at home, Gil v. Winn-Dixie was the first federal website accessibility case to be decided on the merits. The trial court was the United States District Court for the Southern District of Florida.

“Does this mean I don’t have to worry about ADA website compliance?”

No, it does not.

The direct practical impact of this decision is of nominal consequence. Here’s why:

First, the precedent set applies only to Eleventh Circuit Courts which means only federal courts located in Alabama, Florida, and Georgia must follow this decision.

Further, state courts in Alabama, Florida, and Georgia are still free to make their own decisions.

Additionally, federal and state courts everywhere else — including litigation heavy California and New York — are also free to ignore this decision.

And even for entities are located in the Eleventh Circuit (Alabama, Florida, and Georgia), the Gil decision doesn’t affect the ability of plaintiffs to file elsewhere.

The few plaintiffs’ firms who were filing in the Eleventh Circuit courts may be inconvenienced or even stop filing altogether but a growing cottage industry of web accessibility serial litigants remains.

There’s no doubt that the spirit of the Americans with Disabilities Act would carry over into the digital realm; websites, mobile apps, documents, software, games, etc. should all be made accessible to the extent technology allows.

But a formal precedent needs to be set — and that precedent isn’t contained within the Americans with Disabilities Act as it’s currently written.

The Eleventh Circuit included a nice quote capturing this:

“Our constitutional structure does not permit this Court to ‘rewrite the statute that Congress has enacted.’”

When a precedent isn’t in place, it creates instability and we’re seeing that play out now in the legal landscape surrounding digital accessibility.

If we already know that digital assets like websites need to be accessible, what’s the problem?

We don’t know what exactly accessible means.

Is it full WCAG 2.1 AA conformance?

Okay, but what if my website is 99.8% perfect but my footer text has a 4.4:1 color contrast ratio (which falls short of the WCAG minimum threshold), does that mean I’ve discriminated against people with disabilities and violated the ADA?

There must be a clearly defined threshold that we can look to for guidance on compliance with the law.

We currently don’t have that threshold but the Eleventh Circuit’s decision is important because it underscores the lack of a formal federal prescription once again.

This puts even more pressure on where it needs to be: Congress and the Department of Justice (DOJ).

P.S. And no, the horribly constructed Online Accessibility Act isn’t the answer (if you read the details, the act would actually hinder rather than foster accessibility).