June 28, 2017
In a first, a federal court in Florida ruled recently that a grocery store must make its website accessible to the disabled. The plaintiff in the case, a blind man who uses screen-reading technology to access and view websites, obtained injunctive relief, as well as his attorneys’ fees and costs.
Readers of the Nexsen Pruet ELL newsletter may recall our previous article discussing the possibility of company websites being subject to Title III of the Americans with Disabilities Act (“ADA”). In general terms, Title III prohibits discrimination by private companies, based on a disability, in places of public accommodation. Title III, passed in 1990, plainly bars discrimination in a traditional, brick-and-mortar space. For example, Title III requires that a hotel or a physician’s office be wheelchair accessible, and that a movie theater provide closed captioning devices for the hearing impaired.
However, lawyers and judges have struggled with the application of Title III to a public “space” of more recent vintage—the internet. Because the internet barely existed when Title III became law, the statute makes no mention of “virtual” spaces. This begs the question, are private companies that operate websites required to make those websites accessible to the disabled?
During the Obama Administration, the Department of Justice—which enforces Title III—said yes. In fact, the DOJ drafted a regulation that would have placed websites expressly within Title III’s ambit. However, those regulations are not final, and the DOJ has pushed the timeline for their release into 2018, at the earliest.
In the meantime, disabled individuals, in particular those who are visually impaired, have filed lawsuits alleging that various private businesses must make their websites accessible to those who use screen-reading technology.
This month, a federal district court, in the Southern District of Florida, conducted a bench trial to resolve the issue. The case involved a blind man who alleged that the defendant, Winn-Dixie grocery store, had failed to make its website accessible for him to download coupons, order prescriptions, and locate stores. The trial judge ultimately agreed and ruled in favor of the plaintiff.
The judge made several specific findings. First, Title III applies at least to Winn-Dixie’s website because its site is “heavily integrated with Winn-Dixie’s physical store locations” and “operates as a gateway to the physical store locations.” Second, the plaintiff is entitled to a three-year injunction.
The injunction requires Winn-Dixie to modify its website to comport with the Web Content Accessibility Guidelines (WCAG) 2.0. The WCAG 2.0 was developed by the Website Accessibility Initiative to ensure that websites are accessible to people with disabilities. The Court was unconcerned that modifying its website would cost Winn-Dixie about $250,000 because that cost “pales in comparison” to the $2 million Winn-Dixie spent to open the site, and the $7 million it spent to re-make the site a few years later.
The judge was similarly unmoved that third-party vendors operated parts of the site, concluding that “many, if not most, of the third-party vendors may already be accessible to the disabled and, if not Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.”
Finally, although Title III does not permit an award of money damages, it does permit recoupment of attorneys’ fees and costs, which the judge awarded in this case.
Winn-Dixie plans to appeal and an eventual appellate decision may shed more light on this issue. In the interim, private businesses with a significant web-presence—especially those with sites intrinsically tied to their physical locations—should consider having their sites tested. Although the WCAG 2.0 guidelines are not part of any statute and are technically non-binding, as this case shows, they are widely considered the “minimal standard” for disability-based website accessibility.
This area of the law is in flux, but, as the saying goes, an ounce of prevention is worth a pound of cure. Contact any of Nexsen Pruet’s Employment and Labor law attorneys for additional assistance.
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