United States: The Continuing Stream Of Website Accessibility Claims: A Trial Victory For A Plaintiff And A Dismissal For A Company

Over the past 18 months, the number of claims being filed over website accessibility has increased dramatically.1 Although courts continue to differ as to whether websites are places of public accommodation covered by Title III of the Americans with Disabilities Act ("ADA"), and if so, whether all websites are covered or whether there must be a nexus between a physical location and a website for the website to be a place of public accommodation, litigation over website accessibility continues to proliferate. In recent months, there have been two notable district court opinions in this area.

On June 15, 2017, following the first trial conducted over website accessibility under the ADA, Judge Robert Scola from the U.S. District Court for the Southern District of Florida held in Gomez v. Winn-Dixie that the company violated Title III of the ADA because its website is not accessible.

The court first noted that Winn-Dixie's website and physical locations are "heavily integrated." The court observed that services offered on Winn-Dixie's website include the ability to refill prescriptions online, the ability to access digital coupons and link them to a rewards card, and the ability to find store locations. The court reasoned that it did not need to determine whether the company's website is itself a place of public accommodation because the ADA requires not only access to a place of public accommodation, but also "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." The court then found that Winn-Dixie violated the ADA because the lack of website accessibility had denied the plaintiff full and equal enjoyment of the ability to utilize the services available on the website.

To remedy the found violation, the court ordered the parties to agree upon timing for the implementation of an injunction to make the company's website accessible. The court required Winn-Dixie to modify its website to comply with the WCAG 2.0 Level AA standards,2 even though those standards have not been adopted as regulations and, although widely recognized, do not have the force of law. In addition to requiring that all Winn-Dixie created content on the website be accessible, the court also required that any content from third-party vendors on the website be made accessible. In other words, the court made Winn-Dixie responsible for ensuring that the content third-party vendors place on its website is accessible. The court also imposed training and testing requirements.

Plaintiff's counsel, who has filed well over 100 lawsuits over website accessibility in the Southern District of Florida already, likely will continue to do so and will use this decision in other cases he has filed. Other firms bringing these suits will also seek to rely on this opinion. Since the order requires the parties to agree upon the timing for the implementation of the injunction, the ruling is not final. It is not clear whether the case will be appealed to the U.S. Court of Appeals for the Eleventh Circuit.

This ruling stands in stark contrast to a ruling out of the U.S. District Court for the Central District of California a few months ago that is now on appeal to the U.S. Court of Appeals for the Ninth Circuit. In Robles v. Domino's Pizza LLC, District Judge Victor Paul Cruz granted Domino's motion to dismiss a claim by a visually impaired individual that the company was violating the ADA because he could not use his screen reader to place orders on its website or to view the menus and applications on its mobile application. Domino's website included accessibility banners that directed users who are using a screen reader and are having a problem using the website to call a number for assistance.

The court noted that while the U.S. Department of Justice ("DOJ") has consistently stated its view that the ADA's accessibility requirements apply to websites of private companies, it has not issued regulations that impose such a requirement. The court traced the history of the DOJ's attempted rulemaking in this area to 2010 and noted that it has yet to issue a final rule regarding website accessibility. Domino's argued that it was improper for the court to impose liability under the ADA for its alleged failure to abide by standards that have not been adopted through proper rulemaking. Domino's asserted that such an action would violate its right to due process under the U.S. Constitution. Relying upon prior Ninth Circuit precedent, the court agreed with Domino's position that seeking to require a company to comply with the WCAG 2.0 Level AA standards would violate Domino's right to due process.

The district court granted Domino's motion to dismiss, but it did so without prejudice, meaning that the case can be refiled after regulations are issued. As noted above, this decision has been appealed to the U.S. Court of Appeals for the Ninth Circuit.

While this decision may be encouraging to some companies, businesses should be aware that several other trial court judges have rejected similar arguments, including a judge in the Central District of California on June 15, 2017. In addition, the DOJ has filed a Statement of Interest in one case urging the court to reject such an argument.

What Should Companies Do About Their Websites in Light of These Opinions?

It is important to remember that since these decisions are trial court opinions, they do not create binding precedent. Nonetheless, the Winn-Dixie ruling is likely to increase the number of claims that companies will face over website accessibility. In light of that fact, there are steps companies may want to consider.

Companies should become familiar with the WCAG 2.0 Level AA standards to understand the issues the guidelines address and determine if there might be website modifications that would improve the accessibility of their website and mobile apps for disabled individuals. For example, can the company refer disabled customers to a telephone line through which they could obtain information that is otherwise available on the website or obtain assistance in accessing the information or services available on the website? If a company has video on the website or app, can it add close captioning for hearing-impaired individuals?3 Can the company increase the font size used on the website or include a feature that would enable users to increase the font size? If the website or app contains PDF files, PowerPoints, Word documents, or similar files, can they be formatted so that they can be read by screen readers? Could the company adopt a uniform style sheet for its website and app pages to make navigation easier, particularly for users who rely upon electronic braille?

If a company is contemplating rolling out a new website or app, it may want to work with its designers and vendors on designing the website or app so that it complies with the WCAG 2.0 Level AA standards, to the extent practicable and readily achievable. As part of that process, companies may want to ensure that the scope of work includes compliance with each of the applicable success criteria of the WCAG 2.0 Level AA standards. Companies would be well advised to seek representations from their designers and vendors that the website will comply with the standards and indemnification from them if the website does not. Companies that are not developing a new website or app may still opt to assess their level of accessibility, and may want to collaborate with their designers and vendors with experience in website and app accessibility and with counsel experienced in Title III litigation to review other available options to promote accessibility and evaluate the costs, risks and benefits inherent in such alternatives.

Companies should also continue to monitor how the courts are dealing with these issues, and consider ways to respond if they receive a complaint from a customer about the accessibility of their website or app. Until the DOJ issues guidance on this area, companies will continue to face demand letters and lawsuits over the accessibility of their websites and apps. Settlements continue to be reached, but those settlements require compliance with the WCAG 2.0 Level AA standards, so companies should be aware of the obligations such settlements create.

The authors are among a group of attorneys in Littler's Leave of Absence and Disability Accommodations Practice Group who deal with Title III matters.

Footnotes

1  See Gavin Appleby, Peter Petesch, and Mark Phillis, The Wave of Website and Other ADA Accessibility Claims – What You Should Know, Littler Insight (Feb. 22, 2016).

2  The Web Content Accessibility Guidelines (WCAG) are a set of technical standards developed through an open, collaborative process involving both individuals and organizations around the world.  Its goal is to provide a single, shared standard for web content accessibility that meets the needs of individuals, organizations and governments internationally. The WCAG 2.0 AA standards also have been incorporated into an ISO standard by the International Organization for Standardization, but the ISO standard is not law.

3  While most of the lawsuits being filed involve vision-impaired individuals, hearing-impaired individuals also have filed claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Peter J. Petesch
Mark T. Phillis
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.