“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Eleventh Circuit judge Elizabeth Branch wrote a 2-1 opinion that reversed a district court and ruled that a grocery store chain did not violate the Americans with Disabilities Act (ADA) by making some drug refill and other services available only through its website, which is not accessible to visually impaired people unlike hundreds of other commercial websites. The April 2021 decision was in Gil v Winn-Dixie Stores Inc.
Juan Carlos Gil is legally blind and has been a customer at Winn-Dixie grocery stores in southern Florida for more than 15 years. He had difficulty with refilling prescriptions there, because he had to ask an employee to help him as he verbally told the pharmacist what he needed, a process that took 20-30 minutes and made Gil uncomfortable because of its “inherent lack of privacy.” Gil similarly had difficulty with redeeming coupons and store promotions, which sometimes caused employees to become “annoyed by his request for help.”
Gil was pleased to learn that Winn-Dixie set up methods through its website so that customers could privately request pharmaceutical refills “before coming to the store” and thus get what Winn-Dixie called “express re-fills,” and could “link digital coupons to their customer rewards cards so that discounts were applied automatically at checkout.” Gil tried to use the website using screen-reading software that “vocalizes visual information” on the computer screen, with which Gil has “successfully used more than 500 websites.” Unfortunately, he found that the Winn-Dixie website could not be read by the software, making “90% of the website” completely “inaccessible to him.”
Gil sued Winn-Dixie in federal court under Title III of the ADA, which bans discrimination with respect to public accommodations on the basis of disability. After a bench trial, the district court found in favor of Gil and ordered Winn-Dixie to make its website accessible to visually impaired people like Gil. The court relied on the “broad statutory language” of Title III, which prohibits discrimination 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.”
On appeal, Trump judge Branch wrote a 2-1 decision reversing the district court. Although the district court never reached the issue of whether the website itself was a place of public accommodations under the ADA, Branch first ruled that it was not, although she acknowledged that there was a split among the federal appellate courts that had considered the issue. She went on to rule that the inaccessibility was not an “intangible barrier” that denied Gil “equal access” to the “services, privileges and advantages of Winn-Dixie’s physical stores” because it does not “prevent Gil from shopping at the physical store” as he had previously done. Unless Gil or other visually impaired people are “being excluded, denied services, segregated, or otherwise treated differently from other individuals in the physical store,” Branch concluded, there is no violation of the ADA, despite the “significant inconvenience” that people like Gil may suffer.
Judge Jill Pryor vehemently dissented. Initially, she objected to Branch’s decision to reach out and “fashion new circuit law” on whether commercial websites are places of public accommodation, since the parties had not briefed or argued the issue, the lower court had not ruled on it, and other courts are split. In this case, Pryor went on, the specific language of the ADA makes clear that Winn-Dixie was violating the law. This was not only because it was disobeying the general requirement that it provide “full and equal access” to persons with disabilities, but because it was also violating ADA’s specific mandate that businesses ensure that no person with a disability is “treated differently than other individuals” because of the “absence of auxiliary aids and services” unless it would cause an “undue burden.”
In this case, Pryor continued, the technology that “integrates a website” with the screen-reading software used by Gil clearly qualifies as such an “auxiliary” aid or service, and Winn-Dixie did not claim that installing it would create an “undue burden.” The district court’s findings were clear, Pryor went on, that Winn-Dixie was offering “inferior treatment to its visually impaired customers” concerning prescription refills and store discounts, and was thus violating the standard established in previous Eleventh Circuit cases that it must provide visually impaired customers with an “’experience comparable to that of’ its sighted customers.” Branch’s opinion was “flawed” in suggesting that there was no discrimination because Gil could succeed in “filling prescriptions and using coupons,” Pryor pointed out, because he could not “fully and equally” use those services. Instead, Pryor pointedly noted, Winn-Dixie’s conduct meant that he could enjoy “only different – and markedly inferior – versions of them.” In short, Pryor wrote, Winn-Dixie “treated Gil as a second-class customer, offering him different and inferior prescription and coupon services” compared to “nondisabled customers,” in violation of the ADA.
Pryor concluded by expressing concern that Trump judge Branch’s opinion could have “widespread consequences” by giving businesses like stores and restaurants the “license” to use 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.” This issue is likely to arise again in other federal circuits across the country, where there are vacancies for President Biden and the Senate to fill. Because of this and other crucial issues concerning people’s rights, it is critical in our fight for our courts that these vacancies be filled as promptly as possible with fair-minded Biden nominees with a demonstrated commitment to equality and justice for all.