Recently, a much-anticipated ruling on website accessibility was issued out of the Southern District of Florida. The ruling in Juan Carlos Gil v. Winn-Dixie Stores Inc., case no. 16-23020-civ-Scola (S.D. FL 2017), will require the attention of businesses across the country that host websites.
To recap, this was a case of first impression. After a two-day non-jury trial, the Hon. Judge Robert Scola determined that Winn-Dixie’s website operates as a “gateway” to its physical store locations and therefore is required to be accessible to people with disabilities. The Court determined that the “services offered on Winn-Dixie’s website, such as the online pharmacy management system, the ability to access digital coupons that link automatically to a customer’s rewards card and the ability to find store locations, are undoubtedly services, privileges, advantages and accommodations offered by Winn-Dixie’s physical store locations.”
Commentary to the Court’s decision has focused mainly on two portions of the decision: (1) having an inaccessible website violates Title III of the ADA; and (2) a business is required to make its website accessible even though it is a fact that, the Department of Justice (DOJ) has never promulgated enforceable regulations. Instead, DOJ has relied upon the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C) to shape this guidance known as Web Content Accessibility Guidelines (WCAG). While this opinion is the first of its kind, the ruling also addresses an important issue, specifically ADA liability arising from third-party links featured on a website. While we agree with commentary to date, we believe this third issue has not received the attention it deserves.
Court finds that WCAG 2.0 is the standard
In the Winn-Dixie case, the Court ruled that WCAG 2.0 AA were the guidelines Winn-Dixie was required to follow. Conversely, in March, a federal court in California struck down web accessibility claims where the plaintiff attempted to use WCAG 2.0 as an appropriate standard to make a website accessible. In Robles v. Domino’s Pizza LLC, No. cv-106599 (C.D. Cal 2017), the court held that forcing Domino’s to impose a standard to website accessibility in the absence of regulations “flies in the face of due process.” Winn-Dixie not only holds that WCAG 2.0 is the standard to follow, but also requires website audits reoccur every three months to ensure compliance.
Vendors and compliance
It is a common practice for businesses to host links on their websites that connect them to partners, vendors or other third parties. The Court’s ruling suggests that even if a business hosts a compliant website, it may be held liable for noncompliance under Title III of the ADA, if it links up to websites that are inaccessible. The Court in Winn-Dixie ruled that there “are 6 different third parties … who interface with Winn-Dixie’s website so Winn-Dixie needs to make sure that those third parties also make sure that their websites are accessible” and the “Court also finds that the fact that third-party vendors operate certain parts of the Winn-Dixie website is not a legal impediment to Winn-Dixie’s obligation to make its website accessible to the disabled. First, 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.” This language suggests that an operator or owner of an accessible website may face liability for the noncompliance of vendors that it features through its links.
Advocates may welcome these developments, but businesses beware. Although this opinion is not binding on other courts, businesses with websites available to the public may want to consider the following items:
• A web accessibility plan should be a priority. The Court in the Winn-Dixie case took note that a plan was not in place at Winn-Dixie prior to the filing of the lawsuit.
• For companies that have compliant websites, it should be noted that, if they are going to provide a link to another business, there should be some effort to confirm the link is to an accessible website.
• Businesses should consider the best practices in the industry and inquire as to whether their prospective vendor or business partner comply.
• You should also make sure your contracts with your vendors and partners provide provisions to protect your company against website accessibility lawsuits.
This type of litigation is on the rise and will likely have a record year. Until the DOJ issues permanent regulations, there is no end in sight for these types of actions, and businesses need to remain vigilant in their compliance efforts.
About the authors: Carol Lumpkin and Stephanie Moot are partners and Shawn Hogue is an associate at K&L Gates’ Miami office, where they counsel and represent clients in connection with the firm’s litigation practice.