Matthias Niska, BridgeTower Media Newswires
There has been a groundswell of legal activity over the past several years about whether websites are covered under Title III of the Americans with Disabilities Act (ADA). Historically, many courts have held that websites are not governed by Title III, but a recent verdict in the U.S. District Court for the Southern District of Florida may give an idea of how the tide is shifting.
The case, Juan Carlos Gil v. Winn-Dixie Stores, Inc., featured a legally blind plaintiff suing the Winn-Dixie grocery chain because he was unable to navigate its website to download coupons, order prescriptions, and find store locations — activities with a close nexus to its brick-and-mortar “experience.” It was the first lawsuit on website accessibility under the ADA to go to trial, and while only Winn-Dixie is beholden to the accessibility ordered as injunctive relief in the verdict, companies facing similar lawsuits or demand letters now have an idea what to expect if they litigate all the way to trial.
The attention the Gil case has received should, at a minimum, provide a wake-up call to the majority of businesses that have a website. Most businesses only become aware of website accessibility when they are sent a demand letter or are served with a lawsuit alleging that their site violates the ADA. Fortunately, taking steps to proactively improve your website’s accessibility and significantly reduce the risk of a lawsuit is often straightforward and affordable.
Accessible or inaccessible
Defining a website as “accessible” or “inaccessible” to people with disabilities can be elusive since there are tens of millions of Americans with scores of different disabilities or limitations. However, the clear majority of the demand letters and lawsuits focus on a particular aspect of accessibility: screen-reader accessibility.
Screen readers are assistive software programs used by blind and visually impaired individuals, as well as people with other print disabilities like dyslexia, that convert the printed text on a computer screen into audible synthesized speech. The disabled individual uses this software, along with a variety of keyboard shortcuts, to navigate to the specific place on the screen he or she wants to read or interact with. There are many software applications and websites that are generally compatible with screen readers, but there also are many websites that are partially or entirely incompatible because of how they are constructed. If a screen-reader user attempts to navigate an inaccessible website, the screen reader may only be able to deliver garbled speech information, or perhaps no information at all. When that happens, the disabled individual is completely unable to independently navigate around and interact with such a website.
A website developer who wants to know whether the site he or she is building is accessible to, i.e., compatible with, screen readers should look to the Web Content Accessibility Guidelines (WCAG) version 2.0, a comprehensive set of standards published by the World Wide Web Consortium. The WCAG provide concrete, objective rules for web developers to follow to ensure all components of the site they are constructing are accessible to users with various categories of disabilities, but the vast majority of the WCAG standards deal with screen-reader accessibility.
While the WCAG version 2.0 are voluntary industry standards, not binding legal requirements as of yet, businesses should understand that implementing the WCAG standards is straightforward and will not only lower legal risk but also provide your business with additional benefits.
Requirements under the law
Currently, there are several federal laws and a multitude of state laws that relate to website accessibility, with Title III of the ADA being the most important. Title III says that “[n]o individual shall be discriminated against 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.” Title III defines “place of public accommodation” by providing 12 categories of businesses and numerous examples, including hotels, restaurants, theaters, stadiums, grocery and retail stores, banks, museums, libraries, zoos, private schools, day care centers, and many others. In short, nearly all private businesses that sell goods or services to the public are covered by Title III.
Of course, when the ADA was enacted in 1990, Title III was intended to apply only to physical buildings. During the first decade or so after it was enacted, judges and lawyers unquestioningly applied the ADA only in such brick-and-mortar contexts. But with the internet’s increasing role in our everyday lives, especially as it has become the preferred place for many for conducting commercial transactions, the question has arisen—does Title III require websites that offer goods and services over the internet to be accessible to people with disabilities in the same way as it requires brick-and-mortar businesses that offer those goods and services to be accessible?
Responses from the courts have varied, but the answer in Gil v. Winn-Dixie was “yes.” In this case, the court found a direct relationship, or “nexus,” between the retailer’s physical locations and their online counterpart. Since Winn-Dixie was providing benefits on its website—the ability to redeem coupons, locate stores, and renew prescriptions—that directly related to a customer’s ability to shop at the brick-and-mortar store, the court held that the company’s website needed to be accessible to all individuals.
It is important to note that many courts have followed this so-called “nexus” approach. There was another recent decision by the U.S. District Court for the Southern District of Florida in February 2017 where a lawsuit similar to Gil v. Winn-Dixie had a different outcome. In Gomez v. Bang & Olufsen America, the plaintiff, a legally blind screen-reader user, alleged that the defendant, an owner and operator of a chain of high-end audio and visual equipment stores, had violated Title III because various aspects of the defendant’s website were not accessible to him. The court observed that, consistent with previous case law, when a website’s inaccessibility impedes a plaintiff’s “access to a specific, physical, concrete space,” and there is some nexus between the website and the physical place of public accommodation, a plaintiff’s ADA claim can survive a motion to dismiss. However, the court found that Gomez failed to demonstrate any impediment that impinged his access to B&O’s goods and services at one of their brick-and-mortar locations. Unlike Gil v. Winn-Dixie, the Gomez court dismissed the case for failure to state a claim upon which relief could be granted.
Finally, it is important to point out that the “nexus” test is only one approach that courts have adopted to analyze the issue of website accessibility under Title III. Other courts have adopted a broader view than the “nexus” test, under which all websites that are analogous to Title III public accommodations are covered, regardless of their relationship to a brick-and-mortar location. Still other courts have adopted a very narrow approach, in which websites are never covered, regardless of their relationship with a brick-and-mortar business.
Where will website accessibility land?
Even after Gil, the requirements for website accessibility under Title III remain unclear, with courts continuing to apply different tests and to come to differing results. When Congress substantially amended the ADA in 2008, it chose not to say anything about whether websites are covered. In 2010, the Department of Justice (DOJ) promised to issue regulations explaining whether and how Title III applies to websites, but has continually delayed the issuance of these regulations year after year. To deepen the confusion, the DOJ has frequently taken the position in litigation that Title III applies to websites.
Notwithstanding the inconsistent outcomes in this area, the legal risk is plain: Any business that offers goods or services to the public on its website and doesn’t know whether the site is accessible to people with disabilities is at risk of being on the wrong end of a demand letter or a lawsuit. Based on the recent finding for the plaintiff in Gil, businesses should be much warier of not having an accessible website as it may amount to becoming much costlier and more difficult than a simple redesign of their website. If a business ends up in court, there is a good chance it will be forced to remediate its site on a timetable that will be unquestionably more rushed, expensive, stressful, and incomplete.
In the wake of court decisions like Gil, any business website that offers goods and services to the public—especially when the business is building or rebuilding its site anyway—should incorporate the accessibility requirements of WCAG version 2.0 into its site construction. Making your site accessible not only lowers your legal risk, but ensures that your goods or services are available to the widest possible customer base.
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Matthias Niska (mniska@nilanjohnson.com) is an attorney with Nilan Johnson Lewis’ labor and employment practice with a particular passion for advising employers on disability policies. Legally blind since birth, he has a unique perspective and deep understanding of disability employment and public accommodation matters.
