Is Your Website ADA Compliant?
Accommodations for the Visually Impaired
By Michael D’Ambrise and Jessica Slater
In a June 2017 ruling, Juan Carlos Gil v. Winn-Dixie Stores, Inc., the court held that having a website that is inaccessible to the visually impaired violates Title III of the Americas with Disabilities Act of 1990 (ADA). After a significant push by the Plaintiff’s bar, this decision by the Southern District Court of Florida awarded a visually impaired customer a major victory in his challenge for accommodation – the first ruling of its kind. In light of the recent court ruling, website owners should evaluate the level of accessibility of their websites. Failure to comply with ADA regulation may result in more litigation.
Web accessibility ensures that all people are able to use the web regardless of any physical or mental disabilities. While no federal organization mandates the particulars of website accessibility, the Web Content Accessibility Guidelines (WCAG) are produced by a consortium of private organizations with the goal of making websites accessible for everyone. The most recent version of the guidelines, WCAG 2.0, is referred to as the current industry standard for accessibility.
The plaintiff, Juan Carlos Gil, is a visually impaired individual who is only able to use a computer and visit websites through access technology or screen reader software. Screen reader software works interactively with a website. When visiting a certain page, the software automatically tells the user what appears on the website and prompts the user to input information when necessary. Without this type of software, visually impaired individuals would not have access to websites. If a web page is using the common industry standards, WCAG 2.0, screen reader software should be compatible.
It was alleged that when the plaintiff attempted to access the website for Winn-Dixie, a chain of grocery stores, he was unable to do so because its website was not coded in way that allows it to interface with screen reader software. Title III of the ADA prohibits the owner of a place of public accommodation or a service 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.” The court found that Winn-Dixie’s website is “heavily integrated” with the physical store locations and operates as a gateway to them, making the website a service of a public accommodation. Therefore, the court did not need to determine that the website itself was a public accommodation in order to find that Winn-Dixie’s website must comply with Title III of the ADA.
The court found that Winn Dixie offers services to sighted customers through its website. Because Winn Dixie’s website violates Title III of the ADA by not being currently compatible with screen reader software, it does not afford an individual who is visually impaired the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” to which other customers have access. Additionally, because there was no evidence that making the website compatible would cause an undue burden, the court granted injunctive relief that specified that Winn-Dixie will need to adopt and implement a Web Accessibility Policy that will ensure that its website conforms to the WCAG 2.0 criteria by a date mutually agreed upon by both parties. While the ADA does not provide a prevailing plaintiff with damages, it does allow a prevailing party to recover reasonable attorneys’ fees; the court found that the plaintiff is entitled to file a motion for attorneys’ fees and costs.
While this decision is not yet binding outside of the Southern District of Florida, it can be viewed as an indication of a willingness to expand the definition of public accommodation to websites that are “heavily integrated” with the store locations; therefore, website accessibility may be required. The injunction granted in this case also suggests that the WCAG 2.0 guidelines are the standards by which web accessibility will be determined.
As a result, businesses with websites should ensure their compatibility with the latest guidelines to decrease their vulnerability to this type of litigation. Companies seeking to mitigate risks presented by the threat of ADA litigation can do so with employment practices liability coverage. As the legal community monitors for similar verdicts throughout the country that could eventually set further precedents for the purview of the ADA, employers should process the effects of this decision and consider the scope of their policies to ensure that such litigation will be addressed. Beecher Carlson’s Executive Liability Practice offers innovative solutions to companies seeking to limit the risk of this type of litigation with the proper insurance coverage.
Michael P. D’Ambrise is an Assistant Vice President in Beecher Carlson’s Executive Liability Practice in New York. He has a Bachelor of Arts degree with high honors in History/Political Science and Spanish from Rutgers University and a J.D. from Fordham Law School. Michael is a member of the New York and New Jersey State Bars and the bar of the United States District Court for New Jersey. He is a former claims analyst who specializes in Executive Liability coverages. Michael can be reached at firstname.lastname@example.org.
Jessica Slater is a legal intern for Beecher Carlson’s Executive Liability Practice in New York. She is a rising third-year law student at New York Law School concentrating on International and Business Law courses with a particular interest in compliance within the financial industry. She competes on the school’s alternative dispute resolution team, and has participated in both negotiation and mediation competitions where she has successfully settled numerous cases performing roles such as attorney and mediator. Jessica graduated from the University of Rochester with a B.A. in Psychology and Philosophy with emphasis on law and ethics. She can be reached at email@example.com and firstname.lastname@example.org.