Court: Websites Need to Accommodate Blind Persons’ Access
Think the Americans with Disabilities Act (ADA) only applies to brick and mortar business operations? A recent decision by a federal judge in Florida suggests you may need to revise that opinion.The increasing wave of lawsuits challenging website accessibility under the ADA had, until last week, not been tested in court. Thus, for businesses considering whether to settle or fight these lawsuits, the potential damages from a trial were speculative and, frankly, not that scary.Then along came Gil v. Winn-Dixie
, a suit brought by a blind plaintiff against the chain of grocery stores. Gil filed the suit in June of 2016, claiming Winn-Dixie’s website did not allow him to use his on-screen reader and therefore discriminated against him on the basis of his disability. The DOJ intervened late last year on Gil’s behalf and the case was decided in a two day bench trial just last week.Before we get to the verdict, let’s back up and examine the context of the suit. Title III
of the ADA, the part that prohibits disability discrimination in a “place of public accommodation,” was signed into law in 1990, well before the surge of e-commerce websites. So, when Title III was enacted, it essentially was limited to brick and mortar businesses. However, now that e-commerce websites are the norm, there has been a marked increase in the number of plaintiffs arguing that e-commerce sites also are a “public accommodation” subject to Title III. The DOJ agreed and drafted new accessibility regulations for these websites, which were set to be enacted in 2018. Then along came a new resident of the White House and a new head of the DOJ, meaning all bets are off as to when, if ever, the DOJ will move on these regulations.
Now back to the Gil suit. During the trial, Gil testified, as did his accessibility expert. Winn-Dixie put up one corporate representative. The judge ruled entirely in favor of Gil, finding that although Winn-Dixie’s brick and mortar operation complied with Title III, it still was required to bring its website into compliance. The court also ruled that the $250,000 cost for Winn-Dixie was not unduly burdensome. Successful plaintiffs are not entitled to damages under Title III but are entitled to recover their attorney’s fees. The court will hold a separate hearing on the issue of Gil’s fees.
What does this mean for businesses with e-commerce sites? The good news is that this is a decision by one judge in Florida; it is not binding precedent on other courts. The bad news is that the seal arguably has been broken and we will see many more plaintiffs’ lawyers happy to risk a trial rather than agree to a less than favorable settlement. That likely means that the settlement value for these cases just went up.
If you have a website and are wondering if it is in compliance with Title III, take a look at the Web Content Accessibility Guidelines (“WCAG”) 2.0. These guidelines were developed by private accessibility experts and are considered best practices in the industry. The guidelines also were incorporated into the three year injunction imposed on Winn-Dixie in the Gil case.