As I have previously noted (more recently here), in recent months a small number of plaintiffs’ law firms have launched a host of lawsuits under the Americans with Disabilities Act (ADA) based on allegations of website inaccessibility. In light of a recent development, these lawsuits may become an even bigger concern. On June 13, 2017, a federal judge in the Southern District of Florida, following a bench trial, entered a verdict that the website of Winn-Dixie Stores was inaccessible to a visually impaired individual in violation of Title III of the Americans with Disabilities Act. The trial was the first in the history of the ADA about an allegedly inaccessible website and the verdict arguably has significant implications for other businesses that have been hit with suits alleging that their websites are in accessible. The verdict and order in the Winn-Dixie case can be found here.
Juan Carlos Gil is legally blind. He is able to use a computer to access the Internet using screen reader software that read aloud what is on the screen. Gil is also a customer of Winn-Dixie in Miami, where he lives. He learned that by using Winn-Dixie’s website he could access coupons and refill prescriptions online. However, when he attempted to use the website for these purposes and to use the website’s store locater function, he was unable to do so using the reader software. He filed a lawsuit in the Southern District of Florida alleging that the Winn-Dixie website was inaccessible in violation of Title III of the ADA.
Gil’s lawsuit ultimately went to trial in a bench trial before Southern District of Florida Judge Robert N. Scola, Jr. In his post-trial verdict and order, Judge Scola noted that there is no federal organization that mandates particulars of website accessibility. He also noted that a consortium of private organizations has produced Web Content Accessibility Guidelines (WCAG) with the goal of making websites accessible. The current version WCAG 2.0 was finalized in 2008 and was adopted as an international organizations standard in 2012.
At the trial an IT representative of Winn-Dixie testified that it is feasible for the company’s website to be modified to make is accessible to the disabled. He also testified that, independent of the lawsuit, the company is taking steps to make it accessible to the disabled. The company is considering the WCAG guidelines among other sources in determining how to address the accessibility issue. The company has set aside $250,000 for the project. An additional witness and accessibility expert testified that the changes might be completed for substantially less.
In his post-trial verdict and order, Judge Scola said that whether the cost to modify the website is $250,000 or $37,000 “is of no moment.” Though the higher amount “seems high,” it “pales by comparison” to the $2 million that the company spent to open the website in 2015 and the $7 million the company spent in 2016 to modify the site to incorporate a customer rewards program.
In ruling in favor of Gil, Judge Scola first determined that the ADA’s requirements apply to the website. He cited with approval case authority standing for the proposition that “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.”
Judge Scola added that he need not decide whether Winn-Dixie’s website is a public accommodation in and of itself, because “the factual findings demonstrate that the website is heavily integrated with Winn-Dixie’s physical store locations and operates as a gateway to physical store locations.” The ADA does not, Judge Scola noted, merely require physical access to a place of public accommodation; rather it requires that disabled individuals be provided “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” His factual findings, Judge Scola said, demonstrated that the website is in accessible to individuals who must use a screen reader software.
Judge Scola concluded that Winn-Dixie has violated the ADA because the inaccessibility of the website denied Gil of full and fair enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that the company offers its sighted customers.
Judge Scola also concluded that Gil had proven that he was entitled to injunctive relief. He prescribed the terms of an injunction, directing the parties to confer and agree on a timetable for the injunction’s implementation. Among other things, the injunction specifies that by a date to be agreed upon the company shall adopt and implement a Web Accessibility Policy that ensures that the company’s website conforms with WCAG 2.0 and requires further that any third party vendors who participate on the company’s website to be fully accessible to the disabled by conforming to the WCAG 2.0 criteria.
Lawsuits relating to website accessibility have proliferated in recent years. As I noted in a prior post (here), between January 1, 2015 and September 21, 2016, a total of 106 lawsuits were filed alleging that individuals with disabilities were being denied access to business accommodations in violation of Title III of the ADA. Many of these kinds of cases settle, but some courts previously have found that certain businesses’ websites violate the ADA.
Complicating the issues in these cases is the fact (duly noted by Judge Scola) that there are no controlling governmental accessibility guidelines. The U.S. Department of Justice has been considering the issuance of applicable regulations for years, but so far the agency has not issued binding regulations. As the ADA Title III blog noted in its June 13, 2017 post about the Winn-Dixie verdict (here), one of the interesting things about Judge Scola’s ruling is that his proposed injunction adopts the WCAG 2.0 as the accessibility guideline that Winn-Dixie must meet in making its website accessible. The blog post notes that the WCAG 2.0 guidelines have in fact been incorporated in many consent decrees and settlement agreements. Judge Scola’s adoption of the guidelines “further points to the WCAG 2.0 as the de facto standard for website accessibility.”
It is worth noting that Judge Scola not only held Winn-Dixie liable for an ADA violation and granted injunctive relief, but he also invited the plaintiff to file a motion for attorneys’ fees, as the ADA allows courts at their discretion to allow recovery of reasonable attorneys’ fees and costs.
As a trial court ruling by a federal trial judge, the Winn-Dixie verdict does not represent binding legal authority for any other court. Indeed, Winn-Dixie may decide to appeal. Nevertheless, the Winn-Dixie verdict represents a significant development that may have important implications for businesses that have websites supporting their physical operations. It is worth noting in that regard that Winn-Dixie did not use its website for product sales, yet its website was still found to be “heavily integrated” with its physical store locations to be subject to the ADA’s accessibility requirements.
In its post about the Winn-Dixie verdict, the ADA Title III blog notes that for companies caught up in one of these ADA website accessibility lawsuits, the verdict “makes the possibility of an adverse verdict much more real.” The verdict should also focus the attention of businesses on their website accessibility efforts. In the absence of governing regulations on the issue of website accessibility, the injunction Judge Scola prepared in the Winn-Dixie case provides a “judicially-approved framework” for businesses to use in formulating a website accessibility program.
It is worth noting that the plaintiffs have not enjoyed uniform success in these kinds of cases. For example, earlier this year, the Northern District of California held in a case involving Domino’s Pizza that it would violate Domino’s due process rights to find that its website violates the ADA because the U.S. Department of Justice has out regulations defining website accessibility. Notwithstanding these kinds of setbacks, the small number of plaintiffs’ firms that have been leading the charge on these website accessibility issues has continued to file these cases. The result in the Winn-Dixie case undoubtedly will serve to encourage the filing of more of these kinds of cases. It may also discourage companies that find themselves the target of these kinds of suits from taking them to trial.
As I have previously noted about these kinds of cases, these cases represent a substantial litigation risk for the companies involved, as well as for their EPL insurers. The possibility of this type of lawsuit includes not only the risk of damages awards but also includes the costs of defense, as well as the possibility of an award of the claimant’s attorney’s fees.