As numerous retailers know firsthand, website accessibility has become a hotbed for litigation in recent years. Despite plaintiffs filing scores of website accessibility claims against retailers each year, very few of these cases make it past pleadings, and there has been little to no guidance from the courts. This changed on June 13, 2017, in Juan Carlos Gil v. Winn-Dixie Stores, Inc., Case No.: 16-23020-CIV-SCOLA (S.D. Fl.) (available here), when U.S. District Court Judge Robert N. Scola, Jr. issued the very first post-trial web accessibility verdict, finding that grocer Winn-Dixie violated Title III of the Americans with Disabilities Act (ADA) by having an inaccessible website to visually impaired consumers. Judge Scola ordered injunctive relief, providing the parties with a draft three-year injunction, and also awarded Gil his attorneys’ fees and costs.

Although this decision carries no precedential authority over other federal courts or judges, including those in the Southern District of Florida, the decision remains significant for businesses trying to defend themselves against web accessibility claims.

Background

Like most website accessibility claims, the crux of the Gil action is that the plaintiff, a visually impaired consumer, was allegedly unable to use the services on Winn-Dixie’s website (in this case, downloading coupons, refilling prescriptions, and finding store locations) with the assistance of his screen reader software. Based on his experiences, Gil claimed that Winn-Dixie’s website violated Title III of the ADA, because it was inaccessible to the visually impaired. The complaint was filed on July 12, 2016.

Although the Winn-Dixie suit was one of Gil’s first times bringing website accessibility claims, it has been far from his last. Since April 2016, he has filed similar suits against more than 60 other retailers, all in the Southern District of Florida. Scott Dinin, his counsel in each of these actions, is a leading player in the web access arena.

On October 24, 2017, Winn-Dixie filed a motion for judgment on the pleadings, requesting that the court dismiss the case on the grounds that a website is not a place of public accommodation pursuant to Title III of the ADA. Winn-Dixie’s motion prompted the United States Department of Justice (DOJ) to file a Statement of Interest, which noted that Winn-Dixie’s argument could not “be squared with the plain language of the statute, the regulations, or with federal case law addressing this issue.” The DOJ continued:

Because the United States respectfully submits this Statement of Interest to clarify public accommodations’ longstanding obligation to ensure that individuals with disabilities are not excluded, denied services, or treated differently than other individuals because of the absence of auxiliary aids and services, such as accessible electronic technology. This obligation means that websites of places of public accommodation, such as grocery stores, must be accessible to people who are blind, unless the public accommodation can demonstrate that doing so would result in a fundamental alteration or undue burden.

On March 15, 2017, Judge Scola rejected Winn-Dixie’s Motion, explaining that Gil had alleged sufficient facts that, if proven at trial, would demonstrate a “nexus” between Winn-Dixie’s physical store locations and its website that would place the website within the purview of Title III.

The case went to trial on June 5, 2017. The two-day, non-jury trial included testimony by Gil, Gil’s website accessibility expert, and a corporate representative from Winn-Dixie who had knowledge about its website applications.

The Court’s Order: Websites That Operate as a “Gateway” to Physical Store Locations Are Places of Public Accommodation Covered by the ADA

Judge Scola issued an order in favor of Gil on June 12, 2017. Judge Scola held that Winn-Dixie violated Title III of the ADA by failing to provide an accessible public website and, thus, denying individuals with disabilities with “full and equal enjoyment” of its website.

The ruling expressly avoids deciding whether Winn-Dixie’s website, itself, is a place of public accommodation. Instead, the court reasoned that because Winn-Dixie’s website “is heavily integrated with Winn-Dixie’s physical store locations,” the website is considered a place of public accommodation under Title III as it “operates as a gateway to the physical store location.” The court noted that a customer’s ability to download coupons, locate stores, and refill prescriptions on the website sufficiently demonstrated a nexus between the website and physical store locations.

In finding that Winn-Dixie’s website is inaccessible to visually impaired users, the court adopted the Web Content Accessibility Guidelines (WCAG) 2.0 as the accessibility standard that Winn-Dixie must follow to make its website ADA compliant. Even though the guidelines have not been formally adopted by the DOJ, Judge Scola’s ruling confirms that WCAG 2.0 is the leading industry standard for accessibility. (We have previously recommended in “Online Retailers Increasingly at Risk of Website Accessibility Lawsuits,” that online retailers endeavor to meet WCAG 2.0 standards.)

The court expressly rejected Winn-Dixie’s argument that the cost of remediating the website, which Winn-Dixie estimated to be $250,000.00, was an undue burden. In response, the court stated that whatever the cost of remediation may be, it “pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for the Plenti [customer rewards] program.”

Notably, and of significant import to retailers facing such claims,  the court did not limit the reach of its order to only those portions of Winn-Dixie’s website that it operates internally. The court specifically held Winn-Dixie responsible for the entire website’s lack of accessibility, notwithstanding the fact that portions of the website are operated by third party vendors such as Google and American Express. The court explained, “[m]any, 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.”

Lastly, the court provided the parties with a draft injunction, ordering Winn-Dixie to do the following, among other things:

  • Adopt and implement a web accessibility policy that ensures that its website conforms with WCAG 2.0 criteria;
  • Require any third party vendors who participate on its website to be fully accessible to the disabled by also conforming with WCAG 2.0 criteria;
  • Display a publicly available Statement of Accessibility on the website;
  • Provide mandatory training, once a year, to all employees who write or develop programs or codes for the website on how to conform all web content and services with WCAG 2.0 criteria; and
  • Conduct web accessibility monitoring of its website once every three months to identify non-compliance with WCAG 2.0 criteria.

Gorecki v. Hobby Lobby Serves Further Blow to Online Retailers

On June 15, 2017, just a week after the Gil decision was issued, Judge John F. Walter of the Central District of California denied a motion to dismiss website accessibility claims in Gorecki v. Hobby Lobby Stores, Inc. (Case No.: 2:17-cv-01131-JFW-SK). Hobby Lobby argued in its motion that because the U.S. Department of Justice had not promulgated final website accessibility regulations under Title III setting forth specific accessibility standards, it would violate due process to grant injunctive relief, since Hobby Lobby did not have sufficient notice of the need to make its website accessible. Hobby Lobby also argued the action should be dismissed under the primary jurisdiction doctrine which, if applied, would hold that the court should not rule on website accessibility issues until DOJ promulgates and adopts regulations. In the past, these arguments have failed in the context of website accessibility, but their potential viability was recently revisited after Judge James S. Otero of the Central District of California dismissed a website accessibility action on these same grounds in Robles v. Dominos Pizza LLC (Case No.: 2:16-cv-06599-SJO-FFM).

The Court in Gorecki rejected each of Hobby Lobby’s arguments. With regards to Hobby Lobby’s claim that it lacked sufficient notice, the court emphasized that DOJ has articulated its position that Title III requires website accessibility for over 20 years — in speeches, congressional hearings, amicus briefs and Statements of Interest, rulemaking efforts, and enforcement actions and related settlement agreements — and that regardless, Title III has always required “full and equal enjoyment” and the provision of “auxiliary aids and services for ‘effective communication.’” The court also rejected Hobby Lobby’s argument that the primary jurisdiction doctrine should apply, stating that the case could be handled like other Title III matters, and that invoking the doctrine could needlessly delay potentially meritorious claims.

Conclusion

Although the Gil and Gorecki decisions are not binding, both decisions highlight the risks of litigating website accessibility claims, particularly in instances where there is a nexus between the business’ website and its physical store location.

 

If you are concerned that your business needs help combatting cybersecurity threats or responding to a security incident, the Sedgwick Cybersecurity team can assist you. Contact us at SedgwickResponder@sedgwicklaw.com.