Florida, and particularly South Florida, has always been on the leading edge of legal trends that involve mandatory attorneys’ fees for plaintiffs. For many years, the United District Court in and for the Southern District led the pack in the number of Title III cases filed under the Americans with Disabilities Act (“ADA”). In 2013, one in every five ADA Title III case was filed right here in the Southern District. In fact, the Southern District has a 435-page list of all the addresses where ADA Title III cases have been filed in an effort to prevent plaintiffs from suing a property location that was previously sued.
Perhaps because that the address list includes just about every physical location in the Southern District of Florida, the plaintiffs’ bar has now gone virtual and the hot new trend in ADA Title III litigation is website access.
Starting with the basics, Title III of the ADA prohibits discrimination in public accommodation:
No 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 operates a place of public accommodation.
A location is a place of public accommodation if its operations “affect commerce” and it falls within one of the twelve categories described in the statute. The twelve categories cover just about everyplace one might go during a day except for your own private residence. The types of places covered include places of lodging, restaurants, bars, movie theaters, stadiums, concert halls, auditoriums, stores, banks, gas-stations, professional offices (i.e. doctor’s and lawyer’s offices), transportation facilities, all types of recreational facilities (i.e. zoos, libraries, galleries), and all types of schools and colleges, etc.
If you review the twelve categories in detail, you will likely notice that “website” and ” internet” and “online” are not listed anywhere. On the other hand, the Department of Justice (“DOJ”), as evidenced by its enforcement and litigation activity, interprets places of public accommodation to include companies’ online websites.
In fact, the DOJ issued a Notice of Proposed Rulemaking directed to entities governed by Title II of the ADA (i.e. government agencies) which identified the barriers disabled people encounter when using the internet and best practices for removing or reducing those barriers. The DOJ (and some Courts) propose utilizing Web Content Accessibility Guidelines (“WCAG”) 2.0 as the standard (and the regulations) to judge whether a web site is accessible or not.
It is unclear when the Federal government, under the new administration, will complete its rulemaking under Title II and then move on to Title III (commercial entities). As such, unlike physical locations, there are presently no governing regulations for website accessibility.
Alternatively, maybe the Courts will give us some more definite guidelines. Back in 2002, the United States Court of Appeals for the Eleventh Circuit Court of Appeals (which has jurisdiction over federal cases originating in the State of Florida) was on the front edge of this topic when it analyzed similar issues regarding the once popular “Who Wants to Be a Millionaire” gameshow in the Rendon v. Vallycrest case. In Rendon, the issue wasn’t focused on the internet but on an “automated fast finger telephone” selection process. The Rendon Court determined that the show, since it was held in a theater, was a place of public accommodation. The Renden Court went on to rule that since the telephone screening process imposed significant barriers to disabled people who wanted to be on the show, ADA Title III applied to the telephonic application process because it restricted access to the place of public accommodation (i.e. the studio).
Since 2002, the case law in the Eleventh Circuit and throughout the Florida Federal district courts has been somewhat muddy. The most recent case related to this website accessibility is Gomez v. Bank & Olufsen America. In Gomez, Mr. Gomez alleged that he could not utilize the defendant’s website because it is not compatible with his screen reader software (“SRS”). While Mr. Gomez’s Complaint linked the defendant’s website with its physical locations the focus of his Complaint, in this instance, was his reliance on using the internet to shop because of his visual impairment (he is legally blind). Judge Joan Leonard ruled his claim failed because the ADA does not require a place of public accommodation to have a web site at all. However, she also ruled that if a place of public accommodation does have a web site it cannot impede a disabled person’s full use and enjoyment of the brick and mortar locations. Mr. Gomez did not replead his claims, as he had the right to do under this recent order, so the case law remains unsettled in the Southern District.
Check back soon for my Part II post on this topic.
Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases. Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or firstname.lastname@example.org.