In a blow to people with disabilities, a federal appeals court earlier this month ruled that a business that does not sell goods on its website is not considered a place of public accommodation under the landmark Americans with Disabilities Act (ADA).

The 2-1 ruling by the Florida-based 11th Circuit included a vigorous dissent that suggests the case may not be entirely settled and could be reconsidered by the collective court at a later date. If the ruling stands, its impact would be limited to the three states where the 11th Circuit has jurisdiction: Florida, Georgia and Alabama.

It comes after a lower court in 2017 ruled against Winn-Dixie, an Atlanta-based grocery store chain being sued by Juan Carlos Gil, a visually impaired customer who uses a screen reader to access websites.

The case essentially boiled down to whether Title III of the ADA applies to Winn-Dixie and other businesses that provide online services but do not sell products.

According to the ruling, Gil, a long-time Winn-Dixie customer who for years would visit the store’s pharmacy even though he was uncomfortable, brought the suit because he was unable to refill a prescription and link a manufacturer's coupon to his store card on Winn-Dixie’s site, which was incompatible with screen reader software.

Under Title III, it’s illegal for businesses, such as restaurants, retail stores or movie theaters, and commercial facilities to discriminate against people with disabilities.

The two-person majority on the panel interpreted the law narrowly, concluding: “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...public accommodations are limited to actual, physical places.”

In her dissenting opinion, however, Circuit Court Judge Jill Pryor said Winn-Dixie was providing “more favorable treatment” to sighted customers and was in violation of the ADA for maintaining an inaccessible website.

To get a better understanding of the ruling, InclusionHub reached out to Timothy Elder, principal attorney at TRE Legal Practice, a civil rights and disability law firm based in San Francisco.

Here are a few takeaways from that interview:

What is the impact of the Gil vs. Winn-Dixie decision?

Elder agrees with Pryor’s dissent, noting that it was “well reasoned” and “more in line with concepts of statutory interpretation.”

For practical purposes, Elder says the decision only applies to the three states that are within the 11th Circuit’s jurisdiction. It does not impact any state laws that are “independent of the ADA,” nor does it supersede other circuit court decisions, such as the one handed down by the Ninth Circuit in the Domino’s case.

In that suit, the Ninth Circuit Court of Appeals ruled that the “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.” The U.S. Supreme Court in 2019 denied the pizza chain’s petition to hear the case, meaning the circuit court’s decision stands.

“That is still good law, and it's still a dominant position, and I think is the authority that most courts are going to be looking to because it was very well reasoned,” Elder tells InclusionHub. “And the other thing to kind of look at is that the majority in the Winn-Dixie case also really narrowly defined what it was saying. If there is a website that is selling goods or services, like you can actually transact things through that website, then by the language in this Winn-Dixie decision, that's not going to apply, Domino's is the more applicable [ruling].”

Is the Winn-Dixie case settled?

Well, the 11th Circuit may not actually be done with the case as it’s currently on hold.

Here’s what Elder had to say about the future prospects of the case:

“This is not the final decision of the 11th Circuit, either. I know that a judge on the 11th Circuit has asked for a poll of all the other circuit judges to hear the case en banc. So what that means is if the 11th Circuit doesn't like something or disagrees with something, or it's controversial enough, the 11th Circuit as a whole, all of the judges on the 11th Circuit, can rehear the case as a collective body instead of the three-judge panel that developed this opinion.”

Part of his reasoning, he explains, is that there is “enough controversy between the dissent and the majority” to signal a potential review by the full circuit.

What does this mean for web accessibility?

At the end of the day, Elder, like many other disability advocates, believes the most prudent move is for companies to make their websites accessible.

From a legal perspective, however, Elder notes that because there’s a “clear split” between the circuit courts—the 11th in the Winn-Dixie case and the Ninth in Domino’s—there could be clarification by the Supreme Court. If somehow Winn-Dixie ends up in front of the highest court in the land, and if the justices were to affirm the decision, that would potentially force Congress to act, says Elder.

All we can do now is wait for the case to play out in the 11th Circuit. In short: Stay tuned.