A federal appeals court struck a significant blow against disability rights this week when it ruled that a Florida grocery store’s inaccessible website did not violate the Americans with Disabilities Act. The ruling contradicts a 2019 decision by a different appeals court holding that Domino’s did violate the ADA when it failed to make its app accessible to blind people. The disagreement between courts creates uncertainty about the rules that will govern online accessibility in the future.

Winn-Dixie is a grocery store chain with locations across the American South. Juan Carlos Gil is a blind Florida man who patronized Winn-Dixie stores in the Miami area for about 15 years.

few years ago, Gil learned that the store offered customers the ability to fill prescriptions online. Ordering online saves customers time because prescriptions are ready when the customer arrives. Gill also preferred to order prescriptions online because it offered greater privacy. In court, he testified that ordering in person as a blind man made him “uncomfortable because he did not know who else was nearby listening” as he told the pharmacist his order.

Unfortunately, the Winn-Dixie website was incompatible with the screen-reading software Gil used to surf the web, rendering it effectively useless to him. Incensed, Gil stopped patronizing Winn-Dixie and filed a lawsuit under the Americans with Disabilities Act. Gil argued that the inaccessible design of the Winn-Dixie website discriminated against blind customers like him because it forced them to order prescriptions in person, a process that is slower and offers less privacy.

In his lawsuit, Gil also said he couldn’t access two other features of the Winn-Dixie website: a store locator function and the ability to clip digital coupons and automatically apply them at the register with his loyalty card.

A trial court victory

In 2017, a trial court ruled in Gil’s favor, finding that Winn-Dixie’s website discriminated against blind users. Specifically, Title III of the ADA requires that a “public accommodation” such as a grocery store must provide disabled customers such as Gil equal access to its “goods, services, facilities, privileges, advantages, or accommodations.”

Winn-Dixie had argued that the law defines “public accommodations” to only include physical locations like a store. A website isn’t a physical location, and hence it’s outside the scope of the law, the grocery chain argued.

But Judge Robert Scola disagreed.

“Where a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations, courts have found that the website is a service of a public accommodation and is covered by the ADA,” Scola argued.

A website might not be a physical location, Scola reasoned, but a customer who can’t use the website doesn’t have full access to the store’s services, privileges and advantages—such as the service of ordering a prescription ahead of time for quick and discreet pickup.

An appeals court reversal

The grocery chain appealed the case to the 11th Circuit Appeals Court, which reversed Scola in a 2-1 ruling.

The two-judge majority placed a lot of weight on the fact that the ADA only applies to physical spaces. In their view, a website is not a public accommodation as the ADA defines the concept.

And while filling a prescription in person might not be as private or convenient as placing an order online, the judges argued that it was good enough to satisfy the ADA.

“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,” wrote Judge Elizabeth Branch for the majority.

But a dissenting judge, Jill Pryor, rejected the majority’s reasoning. “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 equal treatment,” she wrote. She argued that the online prescription feature was a service of the physical store and therefore subject to the ADA.

But Branch’s majority opinion warned that such a broad interpretation of “services” would open a Pandora’s box.

“The dissent concludes that because visually disabled individuals cannot access the website’s content, they are not receiving a ‘comparable’ or ‘like’ experience to that of sighted customers,” she wrote. “But under such an expansive interpretation, virtually anything—from the tangible to the intangible—might be deemed a service, privilege, or advantage.” She argued Congress didn’t intend “such a sweeping interpretation” of the law.

A circuit split

The ruling runs directly contrary to a 2019 decision by the Ninth Circuit Appeals Court, which covers California and several other Western states. In 2019, the Ninth Circuit ruled that Domino’s had violated the ADA by failing to make its online ordering system accessible to blind customers. Plaintiff Guillermo Robles claimed that this violated his rights under the ADA, and the Ninth Circuit agreed.

“Domino’s website and app facilitate access to the goods and services of a place of public accommodation—Domino’s physical restaurants,” the Ninth Circuit held. “They are two of the primary (and heavily advertised) means of ordering Domino’s products to be picked up at or delivered from Domino’s restaurants.”

Hence, while the website itself might not be a place of public accommodation, an inaccessible website impedes blind customers’ access to the Domino’s restaurant—which clearly is such a place.

This situation—where two different appeals courts take divergent positions on the same legal question—is known as a circuit split. For now, businesses in Western states will be required to follow the Ninth Circuit’s broad interpretation of the ADA and make their websites accessible. Meanwhile, businesses in the three Eleventh Circuit states—Alabama, Georgia, and Florida—won’t have to worry as much about making their websites ADA compliant.

Businesses in other circuits will have to wait for their own appeals courts to rule on this question if they haven’t done so already. Of course, some businesses might decide to make their websites accessible just to be on the safe side—especially if they do business nationwide. But others might decide to wait and see how other courts rule on the issue.

This week’s ruling was made by a panel of three Eleventh Circuit judges. Gil could still request that the case be re-heard by a larger group of judges, which is known as an en banc appeal. Gil could also appeal the case to the Supreme Court.

The Supreme Court reviews only a fraction of the rulings made by lower courts. However, the high court uses circuit splits as an important signal of which cases are worth taking. So the fact that the Ninth and Eleventh Circuit disagree makes it somewhat more likely that the high court will intervene.

Original article here ???????????????? https://arstechnica.com/tech-policy/2021/04/appeals-court-rules-stores-dont-need-to-make-their-websites-accessible/