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Gil v. Winn Dixie Appeal

Here is the Southern District of Florida, this past year has been filled with a monumental increase in Americans with Disabilities Act (“ADA”) Title III cases focused on businesses’ web sites.  Ever since the Gil v. Winn Dixie trial, businesses that maintain a web site have been subject to lawsuits (sometimes repeatedly) over their web sites not being accessible under the ADA.  Plaintiffs have been targeting big businesses, small businesses, mom and pop businesses, basically any business that maintains a web site that connects, in even minimal fashion, to its physical location.

Businesses that want to avoid litigation or simply improve accessibility of their web site for visually impaired customers (or other disabled customers) are in a conundrum since there are no federal regulations that set forth the minimum requirements for a web site to comply with the ADA.  Rather, federal courts have generally seemed inclined to impose Web Content Accessibility Guidelines (“WCAG”)  2.0 AA as the accessibility standard in their Court orders finding that businesses must make their web sites accessible.

In the Gil case, Winn Dixie appealed the District Court ruling to the United States Court of Appeals for the Eleventh Circuit.  Oral argument in the Gil case recently took place on October 4, 2018, and you can listen to it here (30 minutes long).

I was particularly interested in the due process argument regarding the WCAG standards during the appellate oral argument in Gil.   Appellate counsel for Winn Dixie argued that there was no fair notice to Winn Dixie as to which regulations might apply to a particular web site which creates a due process issue for businesses across the country.

The appellate judges seemed very interested in how businesses can comply with WCAG 2.0 standards since it is an ever changing standard.  The appellate judges also questioned how businesses can comply with WCAG 2.0 since the standards are more guidance than standards with no hard and fast rules (unlike the ADA regulations for physical spaces).  One of the panel judges during oral argument raised the below question.

How does a company ever know its in violation if it doesn’t know the standard?

Department of Justice Letter

Also, of interest in this arena, the Department of Justice (“DOJ”) has responded, in letter form, to questions from members of Congress about web site accessibility litigation.

The DOJ made some important points in its recent letter.

First, the DOJ reiterated and confirmed its position that the ADA applies to the web sites of businesses that are considered public accomodations.

The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.

Second, the DOJ makes that point that even though there are no specific web site accessibility regulations promulgated by the Federal government a public accomodations’ web site still needs to be accessible.

Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.

Third, the DOJ did provide a little positive news for businesses.  The DOJ letter states that businesses have flexibility in making their websites accessible.  And, most importantly, a business’ “failure” to comply with WCAG 2.0 AA or any other voluntary standard does not necessarily mean that a web site is ADA non-compliant.  It will be interesting to see if any forthcoming judicial rulings adopt this language in permitting businesses to meet their ADA obligations in more flexible ways.

Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori 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 dstibolt@foxrothschild.com.

Back in the Spring, I posted about the next frontier in ADA Title III litigation (web site accessibility), see my posts here and here.  Since those posts, the next frontier has shown up, with a vengeance, in the Southern District of Florida.

This summer, the first trial (in the country) on ADA web site accessibility was held right here in the matter of Carlos Gil v. Winn-Dixie Stores, Inc., Civil Action No. 16–23020 (S.D. Fla.).

Following trial in the Winn-Dixie matter, U.S. District Judge Robert Scola ruled that:

  1. Winn-Dixie’s website was a “place of a public accommodation” under the ADA.
  2. Based on the testimony of the plaintiff and his expert, Winn-Dixie’s website was not sufficiently accessible.
  3. Accordingly, the court issued injunctive relief and also awarded attorneys’ fees.
  4. The injunctive relief included a requirement that Winn-Dixie adopt and implement a website accessibility policy that ensures its website conforms to the WCAG 2.0 criteria.  Although the court did not note specify a level of compliance with WCAG 2.0 (A, AA, AAA).
  5. Further, the court ordered that any third-party vendors who interact with the website must also conform to such criteria.
  6. The court also ordered that Winn-Dixie homepage include a statement concerning its website accessibility policy.
  7. Winn-Dixie was also required to provide training to all employees who write or develop programs or code, and test its website to identify any incidence of nonconformance every three months for the next three years.

Since the ruling in the Winn-Dixie matter, there has been a summer deluge of cases filed in the Southern District of Florida and plaintiffs’ attorneys appear to be working their way through each and every national corporation to test web site accessibility and then sue for purported deficiencies.  While its mostly been the large national corporations that have been the target of these lawsuits or demands, there is no reason to believe that mid-size and smaller corporations are not next on the list.  Here in the Southern District of Florida, because of the legal precedent of the Winn-Dixie case (although nonbinding), I expect that web site ADA Title III litigation will follow the physical-plant ADA Title III litigation trend with the plaintiffs’ attorneys working their way down from big to small companies.

Retailers and other businesses (including restaurants, hotels, and other service based businesses) with web sites plus physical locations are advised to develop website accessibility policies for their web access and state those policies on their homepages.

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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 dstibolt@foxrothschild.com.

Last month I posted Part I on this topic which covered the state of federal statutes and regulations regarding web site access as well as the most recent Florida Federal case law on the topic.

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This time I around, I want to talk about reality for companies.

Plaintiffs are bringing these website cases here, and elsewhere, and many have already figured out how to plead the claims to survive the motion to dismiss phase.  So, if your company has an inaccessible website and a physical location and the two are physically linked then you are eventually going to face a Title III ADA website case.

Physically linked can mean situations such as:

  1. you offer coupons on your website that people can use in your store or restaurant;
  2. you advertise specials on your website that apply in your store or restaurant;
  3. customers can order merchandise on your website and pick it up at your store;
  4. customers can return merchandise ordered online to your store;
  5. you post your menus on your website for your restaurant; and
  6. you have an online reservation system for your hotel or your restaurant, etc.

If you want to get your website accessible, what should you do?  Head back to the DOJ guidance and consider working towards moving your website to WCAG 2.0 AA or higher level of accessibility.  Since websites are always changing and being updated, you can ask your ecommerce teams (internal and external) to begin moving content or updating content so it meets these standards over time.

The WCAG standards include such things as making content Screen Reader Software (“SRS”) compatible, adding captions to video, photos, etc.  But, there are many other issues that come with meeting the WCAG 2.0 AA standards that involve organization of website, navigation between pages, checkout for ordering, etc. that may require expert guidance.

While the ADA Title III regulations and standards have not caught up with technology, the plaintiffs’ bar has gone beyond.  If you want to avoid litigation regarding your website (and it has a nexus to your companies’ physical locations), you need to think about moving forward with redesign of your website or at least a retrofit that includes SRS compliance until regulations are in place.

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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 dstibolt@foxrothschild.com.

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.

The Feds

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.

 

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The Courts

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.  

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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 dstibolt@foxrothschild.com.