Online Public Accommodation

Online Disability Compliance – The Case of Winn-Dixie

The Americans with Disabilities Act (ADA) prohibits discrimination “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.” Title III of the ADA contains 12 specific categories of public accommodation, including hotels, restaurants, movie theaters, banks, stadiums, day care facilities, gas stations, and professional offices. Thus, the law requires, for example, that a hotel or a doctor’s office be wheelchair accessible and that a movie theater provide closed captioning devices for the hearing impaired.

Are websites places of public accommodation? 

In a recent decision, the grocer Winn-Dixie took the position that websites are not places of public accommodation. Without reaching the question of whether a website standing alone is a place of public accommodation, a federal court located in South Florida decided in June that “[w]here 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.” This decision has potentially far reaching consequences, especially in California.

Enacted in 1990, the ADA did not contemplate the accessibility of websites. Courts have thus wrestled with whether its requirements should be extended to websites, in the same way that the requirements would be extended to innovative physical features of publicly accessible businesses. Signature capture devices at cash register checkouts did not exist in 1990, for example, but retailers know that they need to be made accessible to disabled people. As to websites separate from the retail location, however, a case from 2002 (also decided in South Florida) declared that the statute, as drafted, required that the public accommodation be a physical structure in order for the statute to apply, and that it was for Congress to decide if websites should be included in the law’s coverage.

A case from 2011 stated the law differently. In deciding in favor of Facebook, a federal court located in California said that Facebook fell outside of the law’s scope because its “internet services… do not have a nexus to a physical place of public accommodation.” This opened the door to claims against grocery stores and other brick-and-mortar retailers. Accordingly, the federal decision against Winn-Dixie emphasized how its website was integrated with the purchase of groceries at its physical locations, notwithstanding the fact that customers cannot make purchases on Winn-Dixie’s website.

The services offered by Winn-Dixie that were unavailable to the blind plaintiff included the ability to download coupons, refill prescriptions, and find store locations. The lack of accessibility of the website meant that people with disabilities were unable to take full advantage of the services offered at the physical location, and thus the statute was violated. In the court’s words, “Winn-Dixie has violated the ADA because the inaccessibility of its website has denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that Winn-Dixie offers to its sighted customers.”

In issuing his decision, the judge considered the Web Content Accessibility Guidelines (“WCAG 2.0”), a set of international standards for website accessibility. WCAG 2.0 specifically addresses screen-reading software that is used by visually impaired consumers. Here, the Winn-Dixie plaintiff had attempted to read the Winn-Dixie website with the Microsoft Windows program Job Access With Speech (“JAWS”), a type of screen-reading software that allows its users to read the computer’s screen through either a text-to-speech output or a refreshable Braille display. While the WCAG 2.0 guidelines are not incorporated into any statute, they are widely considered to provide the minimal standard for disability-based website accessibility.

All things considered, the court required Winn-Dixie to undertake several measures, including the following: (1) ensuring that its website is accessible to individuals with disabilities who use computers, laptops, tablets, and smart phones; (2) developing and posting an accessibility policy that ensures compliance with WCAG 2.0; (3) providing annual accessibility training to all employees who write, code, or publish final content to; and (4) requiring third-party vendors on its website to conform to WCAG 2.0 standards.

Even though modifying its website would cost Winn-Dixie about $250,000, the court did not consider that unduly burdensome because that cost “pales in comparison” to the $2 million Winn-Dixie spent to open the website, and the $7 million it spent to re-launch the site a few years later. The judge was similarly unmoved by the fact that third-party vendors operated in parts of the Winn-Dixie website. The court stated that “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.”

Is compliance with WCAG 2.0 standards for the entire website the only solution to achieve ADA compliance? 

In March of this year, a federal court in California considered an ADA claim involving Domino’s Pizza. While the case did not proceed to a trial as the Winn-Dixie case did, the court noted that Domino’s included a banner on its website, readable by screen-reading software that directed blind users to a 1-800 number where they could receive assistance from an operator to navigate the website and obtain goods and services available on the site. Because of this, and other reasons, the California court decided that the ADA was not violated.

If upheld, the Winn-Dixie decision would be particularly ominous for food (and other) retailers in California. The plaintiff in the Winn-Dixie case, in Florida, received injunctive relief in addition to attorney’s fees, which is all the relief that the ADA, a federal statute, authorizes. California, however, has its own version of the ADA, which authorizes recovery of damages by plaintiffs. As a result, California has far more ADA cases filed than any other state, and relief is invariably sought under both federal and state laws in these cases. Indeed, some plaintiff lawyers in California are notorious for prosecuting ADA cases against smaller businesses that are not well-equipped to defend themselves legally.

The Winn-Dixie case described above was decided on June 13, 2017 and may still be appealed. Unless it is reversed judicially or legislatively, food and other retailers are best advised to assess whether their websites are closely integrated with their physical locations, and whether their websites comply with the WCAG 2.0 guidelines.

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Alan Haus

Alan Haus focuses his practice on employment law, intellectual property protection, licensing and commercial transactions. Mr. Haus represents clients ranging from start-ups to multinational companies. His clients include food and other consumer products companies, and e-commerce, software, educational publishing and entertainment companies. He is the former Chair of the Trademark Committee of the California State Bar’s Intellectual Property Section, and represents companies in almost every industry in multinational branding and trademark protection.
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