Another case of statutory interpretation. The subject is intertwined with workers' compensation, which is itself entirely statutory.
Just what is a public accommodation and why is it important? The Americans with Disabilities Act (ADA) was passed in 1990 and quickly became part of the American legal lexicon. The implications in workers' compensation litigation were immediate and contentious. The law was intended to provide equal access to those who suffer disabilities, and too often work accidents/illnesses leave residual effects despite even the best efforts at medical treatment and care. It is common for a worker to suffer from "disability," in the course of a workers' compensation event. Through the 1990s there was significant focus on the subject as courts worked to interpret the provisions of the Act.
A very recent case from the Eleventh Circuit Court of Appeal provides an interesting analysis of a critical element of the ADA, the "public accommodation." In Gil v. Winn Dixie, No. 17-13467, D.C. Docket No. 1:16-cv-23020-RNS, (11th Cir. April 7, 2021), the court explained the "general discrimination provision" found in 42 U.S.C. § 12182(a), which provides:
"[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.”
The critical nature of the phrase "public accommodation" is immediately clear. It is in those "places" that discrimination is prohibited by this provision. In recent years, there has been significant debate and litigation over whether an Internet website is or is not such a "public accommodation." In the Gil decision, the Eleventh Circuit joins those courts that have concluded that at least some websites are not. That potential for some distinction will be of concern to some readers whose initial assumption might be a website is a website is a website.
However, the court begins its analysis with a careful description of the website in this case, noting:
"Winn-Dixie owns and operates grocery stores in the Southeastern United States. It is undisputed that Winn-Dixie only sells goods in its physical stores and does not offer any sales directly through its limited use website."
There are those who suggest that the court's determination of Gil is potentially not a broad pronouncement that websites are not "public accommodations" as much as it is a narrow determination that not all websites are "public accommodations." The distinction, perhaps, is whether a website is a substitute for, or adjunct to, a retail environment. If a website offers goods for sale on a website as a store would on its shelves, there is the potential for a different outcome.
The litigation began five years ago, which illustrates that our justice system takes time. The plaintiff was a Winn Dixie customer who is legally blind. He learned of the potential through the store's website to perform some shopping functions, including refilling medication prescriptions. However, when he attempted to use the website, he found that it was not compatible with the software he utilized to "screen read" on the Internet.
Alleging that the website was therefore inaccessible to those with visual disabilities, Gil sued seeking various damages including "an order requiring Winn-Dixie to update its website 'to remove barriers'" to "individuals with visual disabilities." The trial court concluded that the Winn Dixie website is a "public accommodation." In doing so, the trial court "acknowledged that the circuit courts," that is the federal appellate courts, "are split on the issue of whether the ADA limits places of public accommodation to physical locations."
The Court provides an expansive list from the ADA, locations that the legislature included in the statutory definition of "public accommodations." The list is 12 paragraphs long (lettered "A" through "L"), and includes "an expansive list of physical locations"; over 50 examples are cited along with many "or other" phrases of seemingly broad inclusivity. However, the Court noted, "the list does not include websites."
The Eleventh Circuit explained this split, noting that the Third Circuit has held that “[t]the plain meaning of Title III is that a public accommodation is a place.” Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998). The Sixth Circuit has concluded that the "plain meaning" of the law means a place. Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580, 583 (6th Cir. 1995). Even the Ninth Circuit has rendered decisions focused upon the more narrow "actual, physical places where goods or services are open to the public, and places where the public gets those goods or services.” Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).
The Court explained that other Federal Circuits have viewed the language in a broader context: "The First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) has determined that that the phrase “public accommodation” “is not limited to actual physical structures.” Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994). Specifically referencing that decision, the Seventh Circuit (Illinois and Indiana) has concluded that the "core meaning" of the "public accommodation" language precludes any "owner or operator" of a business "that is open to the public" from "exclud(ing) disabled persons." Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999).
The Eleventh Circuit reversed the trial court in Gil, concluding that "the plain language of Title III of the ADA, public accommodations are limited to actual, physical places." Thus, in the Eleventh Circuit (Alabama, Florida, Georgia), this is the law. The same applies in the Third Circuit (Delaware, New Jersey, Pennsylvania, and Virgin Islands), the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee), and the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Mariana Islands, Oregon, Washington).
Thus a conflict in legal interpretation existed before Gil was decided. Conflict between the Federal Circuit Courts can be homogenized in two ways. The legislature could react to these interpretations of the ADA and enact additional or amended language to clarify the law. Legislative action would apply to causes of action that arose after such laws were passed. Or, the United State Supreme Court could undertake review of one such case and provide an analysis and conclusion which would be applicable across the country.
With little explanation of why, some legal pundits contend that Gil is likely to be a case in which such conflict is brought to the U.S. Supreme Court. In terms of explanation, it is pertinent to note that the conflicting opinions cited by the Eleventh Circuit were rendered in 1994, 1995, 2998, 1999, and 2000. The split has thus been at least apparent for twenty years, though the Gil decision in 2021 certainly brings the issue to the fore again.
It is also interesting that this interpretation returns us to the "plain meaning" of a statute, recently discussed in Statutory Interpretation in Colorado (April 2021). When a statute's plain meaning is clear, the courts need not proceed to examinations of legislative intent or sentiment. The Gil court noted that the plaintiff "relies on legislative history to support the notion that Congress intended an expansive definition of 'public accommodation' in the ADA." The Court reminded that "legislative history is not the law,” according to the U.S. Supreme Court. There is also a citation to a concurring opinion of Justice Scalia regarding interpretation. He noted that a court's duty is to apply the plain meaning, and "if that is not what Congress meant then Congress has made a mistake and Congress will have to correct it.” (Citations omitted).
For now, the law is somewhat settled in the Eleventh Circuit. A website that does not offer goods for sale is not a "public accommodation" under the ADA. Some writers continue to suggest that this may be a distinction addressed in future litigation. Similarly, some suggest that Gil is destined for review by the U.S. Supreme Court to resolve this decades-old Circuit conflict. The certainty in such prognostications is usually this, only time will tell.
