In the first trial on the merits involving website accessibility, a federal judge in Florida ruled on June 13, 2017, after a two-day bench trial, that supermarket chain Winn-Dixie violated the Americans with Disabilities Act (ADA) by failing to make its website accessible. Juan Carlos Gil, a blind Florida man who attempted to use Winn-Dixie’s website to locate Winn-Dixie store locations, fill and refill prescriptions, and obtain store coupons, sued Winn-Dixie alleging that he was unable to access these services because the website was not integrated with his screen reader technology. Screen reader technologies such as JAWS read the content of websites to blind users and assist them through voice prompts in navigating websites.
ADA Title III background
ADA Title III requires that places of public accommodation provide “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Twelve categories of public accommodations are established in the ADA, 42 USC § 12181(7), and include retail stores, restaurants, grocery stores, hotels, among other categories of businesses open to and serving the public. There are detailed regulations that specify how physical places of public accommodation must comply with the ADA. While websites may virtually serve the public, there are no corresponding rules for compliance with the ADA in the arena of website accessibility.
Title III and website accessibility – A circuit split
Federal circuit courts are split on whether websites are “public accommodations” within the meaning of ADA Title III. The First, Second, and Seventh Circuits hold that websites must be accessible, even absent a connection to a physical place of public accommodation. The Third, Sixth, and Ninth Circuits are more restrictive and require some connection between the website’s offerings and a physical place of public accommodation. Other circuits have yet to rule on the issue, including the Eleventh Circuit, which covers Florida.
Judge holds that Winn-Dixie website is a public accommodation
Earlier this year, Judge Robert Scola Jr. denied Winn-Dixie’s motion for judgment on the pleadings, rejecting its argument that its website was not a place of public accommodation. In that decision and in his decision on the merits, Judge Scola relied heavily on the Eleventh Circuit decision in Rendon v. Valleycrest Products, Inc., which held that the ADA covered both tangible and intangible barriers that restrict individuals with disabilities from the enjoyment of a public accommodation’s services. Rendon was a challenge to a telephone audition system for the TV game show Who Wants to Be a Millionaire. Judge Scola also relied on a 2006 case involving Target’s website. The parties in the Target case settled after a California district court held that the ADA applied to Target’s website as “a gateway” service to physical Target stores. Judge Scola relied on Rendon and Target, noting that because Winn-Dixie’s website is “heavily integrated with, and in many ways operates as a gateway to Winn-Dixie’s physical store locations,” he did not need to answer the question of whether a website is, in and of itself, a public accommodation.
Judge Scola ruled that, because Winn-Dixie’s website did not permit access to the visually-impaired, it denied Gil “the full and equal enjoyment of Winn-Dixie’s goods, services, facilities, privileges, advantages, or accommodations because of his disability.” As a result, Gil was awarded attorney’s fees and costs, and Judge Scola issued an injunction against Winn-Dixie requiring it to make its website accessible to individuals with disabilities. Under the ruling, Winn-Dixie will be required to bring its website into full compliance with the WCAG 2.0 standard, even though there is no formal regulation specifying any standard for website accessibility for the private sector. (The government released regulations requiring government entities to be compliant with WCAG 2.0 AA under Section 508 of the Rehabilitation Act.) Winn-Dixie also is required to provide training to all employees who perform work on the website and ensure that third-party vendors, such as Google and American Express, which interface with its website, also offer accessible websites. Winn-Dixie has pledged to appeal the ruling.
Next steps for businesses
In the past couple years, we have seen increasing litigation activity and threatened litigation by plaintiffs against places of public accommodation related to website accessibility. Retailers, restaurants, and other places of public accommodation that either (a) transact business with the public over their website or (b) integrate their web presence with the in-person experience at their physical locations should take note of this decision and bring their websites into compliance with WCAG 2.0—the current standard being pursued in litigation by plaintiffs and the U.S. Department of Justice.
Many thanks to summer associate Carlin Littles for her assistance in preparing this post.