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Clean Up in Aisle III

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For years companies and nonprofits with public areas—especially retailers, multi-family housing developers, and colleges and universities—have faced government investigations and lawsuits over whether their properties are accessible to persons with disabilities. Accessibility is now headed to the next frontier—websites. A recent ruling that websites available to the public must be accessible if they support a physical store could lead to a new round of accessibility investigations and lawsuits.

On June 13, Judge Robert N. Scola, Jr. of the U.S. District Court of the Southern District of Florida released a Verdict and Order in a case about website accessibility as it relates to the Americans with Disability Act (ADA) and visually impaired users. Following a non-jury trial, Judge Scola held the defendant, Winn-Dixie, violated Title III of the Americans with Disabilities Act (ADA) as its website was not accessible to the plaintiff, Juan Carlos Gil, a blind individual who uses the Job Access with Speech screen reader to access Winn-Dixie's website content.

Winn-Dixie is grocery chain operator, with pharmacies in some of its stores. Its website, winndixie.com, includes features such as a store locator, coupons, and the ability to refill prescriptions. Plaintiff Gil alleged he was unable to access certain information and functionality through the website such as the store locator and coupons.

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The threshold question in cases regarding website accessibility is whether a website is a place of public accommodation. Title III of the ADA prohibits the owner of a place of public accommodation from discriminating “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…” 42 U.S.C. § 12182(a). Because websites are not one of the 12 enumerated categories that fall under the purview of the ADA, many courts concluded the ADA does not apply to websites, because “the ADA limits places of public accommodation to physical spaces.”  See Juan Carlos Gil, v. Winn-Dixie Stores, Case 1:16-cv-23020-RNS, at 9 (S.D. Fla. Jun. 12, 2017). These courts “concluded that places of public accommodation must be physical spaces [and] that the goods and services provided by a public accommodation must have a sufficient nexus to a physical place in order to be covered by the ADA.” Id.

Here, however, Judge Scola sided with the plaintiff and found that “where a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations … the website is a service of a public accommodation and is covered by the ADA.” Id. With respect to Winn-Dixie, “the services offered on Winn-Dixie’s website, such as the online pharmacy management system, the ability to access digital coupons that link automatically to a customer’s rewards card, and the ability to find store locations, are undoubtedly services, privileges, advantages, and accommodations offered by Winn-Dixie’s physical store locations.” Id. Judge Scola went on to find that “Winn-Dixie has violated the ADA because the inaccessibility of its website has denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that Winn-Dixie offers to its sighted customers.” Id.

Judge Scola ordered Winn-Dixie to make its website accessible to disabled individuals. In doing so, Judge Scola selected the Web Content Accessibility Guidelines (WCAG), produced by the World Wide Web Consortium (W3C), as the standard for accessibility. Judge Scola concedes “there is no federal organization that mandates particulars of website accessibility.”  Yet, his order nonetheless decrees WCAG version 2.0—the current industry standard for website accessibility—as the judicially recognized standard for website accessibility. 

The level of compliance Winn-Dixie must achieve under the order is not clear. The WCAG 2.0 comprises of success criteria at three levels: A, AA, and AAA, with AAA being the highest level of success. Notably, Judge Scola’s order does not dictate which level of success Winn-Dixie must achieve. In any case, Winn-Dixie will likely have to ensure its accessibility levels are sufficient to enable the plaintiff, or someone similarly situated to plaintiff, to be able to enjoy the services offered by the website. Recently Winn-Dixie appealed Judge Scola’s decision to the 11th Circuit Court of Appeals. A decision on the appeal should be issued sometime next year.

For companies following website accessibility cases, it is unclear what other courts will conclude on the issue of whether a website is a place of public accommodation in similar situations. Nonetheless, companies looking to be risk averse and seeking to achieve accessibility success can take some of the following steps:

  1. Review Current Website Accessibility Levels. Companies can perform an audit of their current website(s) to understand their accessibility levels. There are numerous freeware tools, as well as paid services that companies can avail. Companies should also consider an on-going audit process where their websites are frequently reviewed for accessibility issues.
  2. Review Vendor and Third Party Integrations. Often, a company's website may pull content from third-party providers. Ensuring website accessibility may require that such third-party content also meet accessibility requirements. Therefore, companies should evaluate their sites as well as any third-party content providers to understand the full scope of potential accessibility issues.
  3. Provide Training. Companies should provide training to all employees or individuals who perform website development. Such training should cover WCAG 2.0 and how to achieve accessibility success. 
  4. Review Development Agreements. Many companies outsource their website development to third parties. In such instances, companies should review existing agreements and determine whether the contract provisions allow the company to enforce development requirements to meet accessibility standards.
  5. Develop a Roadmap. Website accessibility is challenging. Besides the expense, companies may have to review content strategies, marketing efforts, customer experience, and other website-related activities. Companies should develop a roadmap for their accessibility goals to help prioritize and streamline their efforts.  Additionally, it is important to properly track expected costs associated with accessibility efforts. In some situations, the costs associated with accessibility efforts may be so high as to be prohibitive, which a court may take into consideration when assessing accessibility compliance. 

The decision in the Winn-Dixie case highlights the uncertainty in this area of law.  Nonetheless, it is the first case to take to trial the issue of website accessibility. The adoption of the WCAG 2.0 as a standard for website accessibility may impact many businesses that rely heavily on their websites to support their brick and mortar operations. Such companies should pay close attention to this case and consider whether it is appropriate to have their sites achieve full accessibility under WCAG 2.0 guidelines.

For more information about website accessibility, contact Sid Bose, Nate Uhl, or another member of Ice Miller’s Data Security and Privacy Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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