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.