The Intertwining of Disability Law and the Web

December 20, 2018

Lía Fiol-Matta, Esq., Ty Hyderally, Esq.

2018 was a good year for most plaintiffs suing businesses that failed to make their websites accessible under the Americans with Disabilities Act (“ADA”), Pub. L. No. 101-336, 104 Stat. 328 (1990). Plaintiffs in federal court obtained their second judgment on the merits in a website accessibility lawsuit, making the score for federal court judgments 2-0 in favor of plaintiffs.

When the ADA became law in 1990, the internet was still in its infancy. Company and government websites, which are so common and taken for granted these days, did not exist. Now, websites are the basis of a new wave of lawsuits under the ADA against business owners and operators of websites. The main argument of these claims is that websites are not sufficiently accessible to the visually impaired, legally blind and other disabled populations.

Although it doesn’t explicitly mention websites, because they basically didn’t exist in 1990, the ADA has been widely interpreted to apply to websites. Title II (prohibiting disability-based discrimination by state and local governments) and Title III (prohibiting disability-based discrimination at places of public accommodations) are the two sections of the ADA most relevant when assessing website accessibility. A “place of public accommodation” refers to private businesses that are open to the public, such as banks, hotels, restaurants, movie theaters, museums and medical offices.

In Gil v. Winn-Dixie, 2017 U.S. Dist. LEXIS 90204, the US District Court for the Southern District of Florida ADA ruled in favor of the plaintiff, who used screen reader software to access information on the internet, holding that Winn Dixie’s website is a place of public accommodation under the ADA and found it inaccessible to people with visual impairments. The Court decided that Winn-Dixie’s website is highly integrated with the company’s physical store locations, making it subject to the ADA.  The Court directed the company to update its site.

The Gil v. Winn-Dixie case is currently on appeal to the US Court of Appeals for the 11^th District.  The defendant claims that websites are not places of public accommodation under the ADA, existing guidelines for website accessibility are not law and the plaintiff was not deprived of the goods and services of Winn Dixie stores. The Court in Winn-Dixie decided that “Winn Dixie has violated the ADA because the inaccessibility of its website has denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations that Winn Dixie offers to its sighted customers.”

Guidelines issued by the US Department of Justice (DOJ), known as Web Content Accessibility Guidelines (WCAG), have not been codified into law and the DOJ has delayed formal regulations. In September of this year, the DOJ stated that noncompliance with the guidelines does not in and of itself violate the ADA. Business and governments must be careful, though, as the trend in favor of plaintiffs suing for lack of website accessibility continues to grow. Defendants in these cases include small businesses, as well as major corporations such as Nike, Burger King, the Hershey Company and GNC.

Individuals who believe they have been denied the enjoyment of a public accommodation because of the inaccessibility of a business’ or government’s website are encouraged to seek the advice of an attorney who specializes in discrimination matters.

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