Hunton Employment & Labor Perspectives

The Department of Justice’s (“DOJ’s”) often criticized rulemaking delays have resulted in no new website accessibility rules for places of public accommodation to receive notice of and implement. Notwithstanding the obvious due process concerns raised by these delays, more and more website accessibility cases are being threatened and filed every day. Most, not unexpectedly, settle. Winn-Dixie did not, and what happened next is worth a closer look.

On June 13, 2017, after a two day bench trial, a federal court ruled that the retailer violated Title III of the ADA because its website was inaccessible to the visually impaired. The case, , Juan Carlos Gil v. Winn-Dixie Stores, Inc., Case No. 1:16-cv-23020-RNS, was before the U.S. District Court for the Southern District of Florida. The court ordered injunctive relief (including a three-year injunction) and awarded the plaintiff his attorneys’ fees and costs. While not binding on district court judges, this decision may very well spur the filing and issuing of more lawsuits and pre-litigation demand letters against retailers asserting website accessibility claims. Retailers with websites used by its customers may wish to work with counsel to craft a strategy for preemptively dealing with these types of issues.

In Winn-Dixie, Judge Robert Scola ruled on the following three issues:

• whether Winn-Dixie’s website is subject to the ADA as a service of a public accommodation, or, in the alternative, whether the website is a public accommodation in and of itself;
• whether the plaintiff was denied the full and equal enjoyment of Winn-Dixie’s goods, services, facilities, privileges, advantages or accommodations because of his disability; and
• whether the requested modifications to Winn-Dixie’s website are reasonable and readily achievable.

First, the court found that Winn-Dixie’s website is subject to the ADA as a service of public accommodation. The court concluded that it need not decide whether Winn-Dixie’s website is a public accommodation in and of itself, because it found that the website is heavily integrated with Winn-Dixie’s physical store locations and operates as a gateway to the physical store locations.

Second, the court found that the factual findings, which included findings that Winn-Dixie’s website did not permit the blind plaintiff to download coupons, order prescriptions and find store locations, demonstrated that Winn-Dixie’s website is inaccessible to visually impaired individuals who must use screen reader software, and therefore violated the ADA. Notably, the court held Winn-Dixie responsible for its website’s lack of accessibility even though third parties operated parts of its website: “[M]any, 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.”

Lastly, the court ruled that the requested modifications to Winn-Dixie’s website are reasonable and readily achievable, noting that the $250,000 cost of making the website accessible was not an undue burden as the cost “pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for the Plenti [rewards] program.” The court also noted that Winn-Dixie’s corporate representatives unequivocally testified that modifying the website to make it accessible to the visual impaired was feasible, and ruled that remediation measures in conformity with the Web Content Accessibility Guidelines (“WCAG”) 2.0 Guidelines will provide the plaintiff and other visually impaired consumers the ability to access Winn-Dixie’s website. The adoption of WCAG 2.0 by this court in its draft injunction suggests a concerning willingness to brand WCAG 2.0 as a de facto legal standard for website accessibility, notwithstanding the DOJ’s years-long delay in promulgating a lawful rule to establish a lawful legal standard.

The Winn-Dixie ruling directly contradicts two recent wins for retailers in this arena from earlier this year.

On March 20, 2017, the U.S. District Court for the Central District of California dismissed a lawsuit, Robles v. Dominos Pizza LLC, Case No. CV 16-06599 SJO (SPx), by a blind plaintiff claiming Dominos violated the ADA as he could not order pizza from the Domino’s website using his screen reader. While rejecting Dominos’ argument that the ADA did not cover websites, the court ruled that Dominos had met its obligations under the law by providing telephonic access to its services, and that requiring Dominos to have an accessible website at this time, when the law nor the regulations require websites to be accessible, would violate Dominos constitutional right to due process.

On February 2, 2017, in a case styled as Gomez v. Bang & Olufsen America, Inc., Case No. 1:16-cv-23801, the U.S. District Court for the Southern District of Florida also dismissed a lawsuit with leave to amend because the plaintiff failed to allege that his ability to use Bang & Olufsen’s retail website prevented him from accessing its stores. Explicitly rejecting the argument that the ADA requires a website to provide the same online shopping experience as non-disabled persons, the court held that “[a]ll the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store. To survive a motion to dismiss, Plaintiff must claim an actual (not hypothetical) impediment to the use of Defendant’s retail location.” The court further ruled that “the ADA does not require places of public accommodations to create full-service websites.”