In one of the most definitive decisions yet on the issue of website accessibility standards and violations of the Americans with Disabilities Act (“ADA”), a judge presiding over a bench trial in the Southern District of Florida rendered a verdict for the plaintiffs in Gil v. Winn Dixie, CV 16-23020-CIV (2017 WL 2547242). The issue of ADA compliance for small business websites was discussed earlier this year in a post to the CVL blog. Any business with a website should be aware of the court’s mandates in its order because it identifies the steps to take to avoid liability for violating the ADA in this context.
Facts of the Case
The plaintiff Juan Carlos Gil was a visually impaired, legally blind regular customer of Winn-Dixie, a regional chain of grocery stores prevalent in Florida. The only issues at trial were (1) whether Winn-Dixie's website “was 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;” (2) whether the plaintiff’s disability resulted in denial of “the full and equal enjoyment of Winn-Dixie's goods, services, facilities, privileges, advantages, or accommodations”; and (3) whether the requested modifications to Winn-Dixie's website were “reasonable and readily achievable.”
Take-Away #1: The WCAG Matters.
A key take-away for small businesses was the court’s reasoning in addressing the third issue, whether modifications requested by Gil and necessary to comply with the ADA were “reasonable and achievable.” The court, instead of crafting its own guidelines sui generis, relied exclusively on the “Web Content Accessibility Guidelines” (WCAG) which are promulgated by “a consortium of private organizations whose goal is to make websites accessible for all,” because currently “…no federal organization…mandates particulars of website accessibility.” The court’s order specifically mandates that Winn Dixie “shall adopt and implement a Web Accessibility Policy which ensures that its website conforms with the WCAG 2.0 criteria” and “shall require any third party vendors who participate on its website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria.” This last point was critical because Winn Dixie tried to escape liability in part by attributing ADA violations to third-party components and tools integrated into its website such as the store locator, a payment module, and the loyalty and points program. The court found that:
the fact that third party vendors operate certain parts of the Winn-Dixie website is not a legal impediment to Winn-Dixie’s obligation to make its website accessible to the disabled. First, many, 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.
The estimated cost for necessary compliance upgrades was also seen by the court as feasible; Winn Dixie estimated the cost at $250,000, but a plaintiff’s expert testified his company could perform such an upgrade for around $37,000. Even at the higher figure, the court found 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…”
Take-Away #2: The Greater the Nexus Between Store & Website, The Greater the Liability.
The other key takeaway for small businesses is the court’s reasoning in determining the threshold for liability in ADA website cases. Citing 9th and 11th Circuit precedents, the court noted that “where a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations…the website is a service of a public accommodation and is covered by the ADA.” The court contrasted this rule with 11th Circuit courts that held “where a website is wholly unconnected to a physical location…the website is not covered by the ADA.
"The Moral of the Story"
The practical lesson to be gleaned from the Gils case is that if your business has a brick-and-mortar store and a website, you should analyze the level of integration between the two, and if warranted, take immediate steps to fully comply with the latest WCAG standards to avoid ADA liability.