Gil v. Winn-Dixie Stores, Inc.1 is a long-awaited decision issued by the Eleventh Circuit Court of Appeals on April 7, 2021. The court has sided with the Third, Sixth, and Ninth Circuits2 in holding that websites do not qualify as “public accommodations” and thus are not covered by Title III of the Americans with Disabilities Act (ADA). 3
The plaintiff, Juan Carlos Gil, is a legally blind man who has frequented the Winn-Dixie stores for over 15 years. Mr. Gil, a 39-ish wheelchair athlete at day, a professional plaintiff with over 175 ADA lawsuits at night,4 uses a computer software to vocalize text on websites. The defendant Winn-Dixie Stores (listed on the S&P 500 since February 18, 19525) operates brick and mortar grocery stores and also runs a website that only allows customers to re-fill prescriptions for in-store pickup, and to link coupons to rewards cards so that the coupons are applied upon check out at a physical store. Winn-Dixie does not sell any goods on the website.
Indeed, Mr. Gil is one of so-called “serial filers” that target ADA-non-compliant businesses. Due to their impairments, most often blindness and deafness, the individuals can bring ADA lawsuits against businesses whose websites do not support screen-reader software and closed captioning, among other bases. On the one hand, such lawsuits embody the much-needed private enforcement of federal law and a demand for basic human respect and dignity. On the other hand, they can be a (repeated) headache in the form of lawsuits and increased premiums for liability insurance for both small and large businesses. As it happens, Mr. Gil wished to visit Winn-Dixie’s website, but his screen-reader software was incompatible with the site. Mr. Gil brought a single claim under Title III of the ADA against Winn-Dixie Stores.
Under Title III, “[n]o individual shall be discriminated against 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.”6 Discrimination occurs when an operator of a place of public accommodation “fail[s] to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.”7
Mr. Gil alleged that Winn-Dixie violated the ADA because its website was inaccessible to visually impaired individuals. Mr. Gil requested an order requiring Winn-Dixie to update its website so that impaired individuals can fully access the website. (ADA law is full of mandatory injunctions – a topic for another time). In response, Winn-Dixie denied that the website qualified as a place of “public accommodation” (but admitted that its stores qualified as such).
District Court Judge Robert N. Scola, Jr., a cancer survivor who recently recused himself from a case against a health insurance company because the company’s denial of treatment was “immoral and barbaric”,8 ruled for Mr. Gil at a bench trial. Winn-Dixie appealed, raising a kay question of whether websites are places of public accommodation under Title III of the ADA. The court divided the issue into two parts: (1) whether Winn-Dixie’s website itself qualifies as a place of “public accommodation”; and (2) if not, whether the website otherwise violates Title III.
Title III lists 12 examples of places that are “public accommodation”, including a zoo, a restaurant, or a shoe repair shop, to name a few. However, the court argued, all 12 examples are brick and mortar locations, not websites. In support, the court pointed to Department of Justice’s regulations implementing the ADA which lists a plethora of physical locations, including grocery stores, but likewise does not include websites.9
The court adopted a conservative textual approach and held that “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”10 Thus, in accord with the principle of separation of powers, the court relied on the plain language of Title III, pursuant to which “public accommodations” are limited to actual, physical places. Mr. Gil’s proffer of the legislative history to support the notion that Congress intended an expansive definition of “public accommodation” was of no consequence, because “legislative history is not the law.”11 Consequently, Mr. Gil’s inability to access and communicate with Winn-Dixie’s website did not violate the unambiguous statute. The court then analyzed the second sub-issue, whether Winn-Dixie’s website, even if not a public accommodation, otherwise violates Title III. Mr. Gil alleged that the website’s inaccessibility serves as an “intangible barrier” to his equal access to the services, privileges, and advantages of Winn-Dixie’s physical stores, which Winn-Dixie admitted are places of public accommodation. The ADA’s general ban on discrimination mandates that a place of public accommodation take steps necessary to ensure that “no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.”12
Here, the court relied on its prior decision in Rendon v. Valleycrest Productions, Ltd.13 In Rendon, the court held that ADA’s provisions applied not only to physical but also intangible barriers, specifically the telephone screening and selection process for contestants in the TV game show Who Wants to Be a Millionaire. But, the court argued, Winn-Dixie’s website was not an intangible barrier because it is not a point of sale and Mr. Gil is free to continue shopping at the physical locations.8
In opposition, the dissent argued that precisely because Mr. Gil could not access the website, he was treated differently and thus, in violation of Title III. The court did away with the intangible barrier argument by requiring a causal connection: “the inaccessibility of the website must serve as an ‘intangible barrier’ to Gil’s ability to communicate with Winn-Dixie’s physical stores, which results in Gil being excluded, denied services, segregated, or otherwise treated differently from other individuals in the physical stores.” Here, the court found that Mr. Gil is treated the same as others because he has full and equal access and enjoyment of Winn-Dixie’s physical stores – the operative place of public accommodation. In other words, for ADA to apply to a non-physical location, there must first be an intangible barrier completely precluding access, equivalent to a non-impaired person not being able to access a physical place of “public accommodation”.
The court concluded with a reinforcement of the separation of powers, deferring to the legislature to broaden the scope of the ADA, and vacated the judgment.
In Judge Pryor’s lengthy dissent, the Yale Law School alumnus14 argued that Mr. Gil could only enjoy different and markedly inferior version of the services, privileges, or advantages offered by Winn- Dixie. Judge Pryor made a sound and realistic observation on the decision’s negative implication: “Places of public accommodation, such as stores and restaurants, increasingly use websites and apps to offer their customers safer, more efficient, and more flexible access to goods and services in physical stores. The majority opinion gives stores and restaurants license to provide 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.”15
The current federal split on the issue is ripe for a determination by SCOTUS. Stay tuned.
 Gil v. Winn-Dixie Stores, Inc., No. 17-13467, 2021 U.S. App. LEXIS 10024, at *6 (11th Cir. Apr. 7, 2021) https://cases.justia.com/federal/appellate-courts/ca11/17-13467/17-13467-2021-04-07.pdf?ts=1617822062, last visited on April 13, 2020.
 See, e.g., Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998); Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580, 583 (6th Cir. 1995); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).
 Generally, “the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III).” PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).
 https://www.palmbeachpost.com/news/20181109/why-this-legally-blind-athlete-has-filed-175-lawsuits-over-websites, last visited on April 13, 2020.
 https://en.wikipedia.org/wiki/Winn-Dixie, last visited on April 13, 2020.
 42 U.S.C. § 12182(a).
 Id. § 12182(b)(2)(A)(iii).
 https://www.washingtonpost.com/nation/2019/05/01/immoral-barbaric-cancer-surviving-judge-blasts-insurer-denying-therapy-before-recusing-himself/, last visited on April 13, 2020.
 . 28 C.F.R. § 36.104.
 Gil v. Winn-Dixie Stores, Inc., at *17.
 Azar v. Allina Health Servs., 139 S. Ct. 1804, 1814 (2019).
 42 U.S.C. § 12182(a).
 Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002).
 https://obamawhitehouse.archives.gov/the-press-office/2012/02/16/president-obama-nominates-jill-pryor-serve-us-court-appeals, last visited on April 13, 2020.
 Gil v. Winn-Dixie Stores, Inc., at *69.