If you haven’t already, add website accessibility to the growing list of unintended consequences of the ADA. Evolving definitions of what constitutes a physical or mental disability, senseless mandates, hefty compliance costs for business owners and waves of abusive litigation that have developed under ADA have proven that enforcement of the law is nothing more than a disaster that has lined the pockets of a small number of opportunist lawyers and their clients.
Clear rules for applying the ADA to websites have yet to be established leaving the door open for interpretation by the courts. Some of the demands of disabled users, in order for a website to be accessible, include, it must use fewer pictures, present text in a format that is compatible with test-reading software, and employ design that allows for easy navigation. Companies who have physical locations in connection with websites should be particularly knowledgeable of the consequences of these cases. Advisen Insurance, Mr. Daniel R. Long, reports.
For the first time, a federal district court has granted a verdict finding that a private-sector company violated Title III of the Americans with Disabilities Act (ADA) because its website was inaccessible to a visually impaired individual. This verdict is likely to lead to a proliferation of the already-growing number of lawsuits filed against private companies, claiming that their websites are “public accommodations” and must be accessible to disabled users.
While this case did not necessarily involve one of the ADA’s provisions that management and human resources personnel frequently navigate (e.g., Title I’s requirement that employers provide reasonable accommodations to qualifying disabled employees), it has broad implications for any employer that maintains a website.
Can an inaccessible website be subject to an ADA claim?
The plaintiff in Gil v. Winn-Dixie Stores, Inc. (filed in federal court in the Southern District of Florida) was a legally blind individual who had previously been a customer of a grocery store and pharmacy chain in the southeastern U.S. The customer had previously shopped at the store’s physical locations and refilled prescriptions at its pharmacies. Using computer access technology software, including screen reading software, the customer was able to visit various websites, but found that the store’s website was incompatible with this software. Specifically, the customer alleged that 90 percent of the tabs on the website did not work with his software, and he could not obtain digital coupons, navigate the website’s store locator tool, or refill his prescriptions online for in-store pickup or delivery.
While the store did not directly make any sales from its website, the customer sued the store on the basis that its website’s inaccessibility deterred him from enjoying the store’s goods and services in violation of Title III of the ADA. The crux of the argument was that the website was a “public accommodation” within the meaning of Title III, and the store violated the ADA by not providing an accessible website, thus depriving individuals with disabilities of the “full and equal enjoyment” of its services.
Sidestepping a question that has divided federal appellate courts – whether the store’s website itself, rather than one of its “brick and mortar” locations, was a place of “public accommodation” – the court found that the store’s website was “heavily integrated” with the store’s physical locations and operated as a gateway to those locations. Accordingly, the court determined that the store violated the ADA because the inaccessibility of its website denied the plaintiff the full and equal enjoyment of the goods and services the store offers to non-visually impaired customers. The court therefore issued an injunction requiring the store to make its website accessible to the visually impaired and to pay the plaintiff’s attorneys’ fees resulting from the litigation.
Fortunately for employers, this case was decided by a single federal district court, and is not binding on any other court – even within the Southern District of Florida. That said, the decision will have persuasive value across jurisdictions and provides further ammunition to plaintiffs’ lawyers who are already filing Title III lawsuits against companies based on website inaccessibility. Companies whose websites have a strong connection with physical locations at which they offer services should be especially cognizant of the ramifications of this case. Additionally, it is likely that the same arguments – regarding need for an accessible website – will be used by plaintiff employees seeking to bring claims under Title I of the ADA.
To mitigate the risk of a potential lawsuit, private companies should implement the following steps:
Proactively evaluate your website’s accessibility. Due to the absence of any regulatory guidance by the U.S. Department of Justice, the World Wide Web Consortium’s Web Content Accessibility Guidelines are frequently considered the industry standard governing website accessibility (as noted by the court in Gil).
Consult with legal counsel and/or consultants experienced in ADA accessibility in assessing your website. If your website does not meet the relevant standards, work with counsel to formulate a plan to bring it into compliance and minimize the risk of any lawsuits in the interim.
Evaluate any third-party vendors who operate your website or portions thereof. In Gil, the court found that third-party vendors operated parts of the store’s website, but the store had a legal obligation to require those third parties to be in compliance with accessibility standards. As such, any reliance on third-party vendors to operate your website may not necessarily shield your company from liability.
Review those portions of your website or intranet that are accessible to employees and potentially necessary for workers to carry out their job duties, in order to determine whether
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