Since our August 2016 article on the applicability of the Americans with Disabilities Act of 1990 (the "ADA") to the Internet, litigation involving website violations of the ADA has been on the rise. To date, however, there remains a split among the circuit courts with regard to whether Title III of the ADA applies to websites. To further complicate the issue, the federal government has not yet formally adopted a set standard for website accessibility.

Last month, the first trial in the history of the ADA involving an allegedly inaccessible website was held. On June 12, 2017, after a two-day, non-jury trial, a U.S. District Court Judge for the Southern District of Florida ruled in a case of first impression that a supermarket chain's website violated a visually impaired Florida man's rights under Title III of the ADA. While this "first impression" decision is not binding on other federal courts, it is significant for several reasons: (1) it is the first decision to hold that a public accommodation violated Title III of the ADA by having an inaccessible website; (2) the proposed injunction adopts the dated Web Content Accessibility Guidelines 2.0 as the accessibility standard the supermarket chain must meet to make its website accessible; (3) the court did not consider the $250,000 estimated cost (to supermarket chain) of making the website accessible to be unduly burdensome; and (4) the court held that the supermarket chain was responsible for the entire website's lack of accessibility, even though third-party vendors operated parts of the website.

Factual Background
Plaintiff Juan Carlos Gil is legally blind and has cerebral palsy. Mr. Gil is able to use a computer with access technology software (such as "Job Access With Speech" or "JAWS") because he cannot see the computer screen. Mr. Gil has patronized the supermarket chain's stores and pharmacies due to their competitive prices. The supermarket website offers, among other features, a store locator, digital coupons that link to a customer's reward card, and the ability to refill prescriptions online. Approximately 90% of the retailer's website was not accessible to Mr. Gil with his screen reading software. Due to the lack of website accessibility, Mr. Gil would refill his prescriptions in store but felt uncomfortable because he had to tell the pharmacist what he needed, in earshot of others. Additionally, Mr. Gil's only way of obtaining coupons was to have a friend read the coupons aloud from a newspaper.

The issues in this case were (1) whether the supermarket chain's website is subject to the ADA as a service of a public accommodation in and of itself; (2) whether Mr. Gil was denied the full and equal enjoyment of the retailer's goods, services, facilities, privileges, advantages, or accommodations because of his disability; and (3) whether the requested modifications to the supermarket chain's website are reasonable and readily achievable.

Title III of the ADA and the Internet
Title III of the ADA prohibits the owner or operator of a 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). The ADA defines a public accommodation as a private entity whose operations affect commerce and which falls within one of 12 enumerated categories. Courts are split on whether the ADA limits places of public accommodation to physical spaces. As stated in our 2016 article, courts have taken diverging positions on whether the ADA limits places of public accommodation to physical spaces, which fall under three main categories: (1) websites are not physical locations, so they cannot constitute public accommodations under the ADA; (2) websites may be considered public accommodations if there is a nexus between that website and a physical location that falls into one of the enumerated categories under the ADA; and (3) websites themselves can constitute public accommodations under the ADA, even if websites do not have any nexus to a physical location.

While Judge Robert Scola stopped short of deciding whether the supermarket chain's website qualifies as a public accommodation, he confirmed that Title III of the ADA applies if the website is "heavily integrated" with and serves as a "gateway to the physical stores." The supermarket chain argued that Mr. Gil had not been denied access to the supermarket chain's physical store locations as a result of the inaccessibility of the website, but the Court held that the ADA does not merely require physical access to a place of public accommodation. Rather, Judge Scola held the ADA requires that disabled individuals be provided "full and equal enjoyment" of the goods, services, facilities, privileges, advantages, or accommodations of any public accommodation. The court found that the services offered on the retailer'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 undeniably services, privileges, advantages, and accommodations offered by the supermarket chain's physical store locations. Thus, the court held that the supermarket chain's inaccessible website violated the ADA.

Plaintiff's expert estimated it would cost a total of $37,000 to make the supermarket chain's website fully accessible. The chain had set aside $250,000 to develop an ADA policy for its website and to make its website accessible. The Court found that even a $250,000 cost to modify the website paled in comparison to the $2 million the chain spent in 2015 to launch its website and the $7 million it spent in 2016 to remodel the website for its rewards program. As a result, the Court found that the cost was not unduly burdensome. The Court also found that the fact that third party vendors (e.g., Google and American Express) operate parts of the supermarket chain's website does not excuse the retailer's obligation to make its website accessible to the disabled.

Recommendations for Businesses
While the circuit courts remain split and the Department of Justice has not yet formally adopted WCAG 2.0, this decision seems to reflect the future of the ADA and its applicability to the internet and confirms that businesses (and certainly brick and mortar businesses) should make their websites accessible by bringing them into compliance with WCAG 2.0.

At Lewis Brisbois, the attorneys in our ADA Compliance & Defense practice group assist businesses with evaluating their levels of compliance with the WCAG guidelines by working closely with experts in the field to conduct technical accessibility reviews of each business' web content. This enables us to determine the steps our clients may need to take in order to achieve greater compliance under the ADA and, ultimately, to help our clients avoid the high costs associated with an unfavorable outcome at litigation. In the event litigation is unavoidable, we have the knowledge and experience to defend these actions and obtain favorable results for our clients.

Our ADA Compliance & Defense practice group has successfully defended clients in an array of ADA-related matters from pre-litigation through appeal. With over 20 attorneys across the country, our team has the resources to advocate for our clients and provide them with the best possible result for the best possible value. In addition to the steps our team takes to defend against allegations of discrimination, we are also well-versed in assisting clients to contain the risk to their public image and mitigate damage to their public relations.

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.