After years of demand letters, complaints and settlements, a website accessibility lawsuit under Title III of the Americans with Disabilities Act, 42 U.S.C. §§12181-12189 (ADA or Title III), finally went to trial in the United States District Court for the Southern District of Florida. See, Gil v. Winn-Dixie Stores, Inc., Case No. 1:16-cv-23020-RNS (S.D. Fla. June 12, 2017). At the conclusion of the two-day court trial conducted in mid-June, the district court entered judgment against Winn-Dixie Stores, the website’s owner and operator, requiring Winn-Dixie to, among other things, ensure that its website complies with the World Wide Web Consortium’s Website Content Accessibility Guidelines, version 2.0 (WCAG 2.0). The case is remarkable not just because it is the first of its kind to go to trial, but also because the court’s opinion does not consider whether a website owner can employ alternatives other than WCAG 2.0 to make website content “accessible.”
The ADA, the Auxiliary Aids Standard and Websites
Title III prohibits places of public accommodation from discriminating against individuals with disabilities “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation … .” 42 U.S.C. §12182(a); 28 C.F.R. §36.201(a). Over the past few decades, website owners, members of the disabled community and scholars have debated whether Title III can and should be applied to the Internet and websites, which did not exist in their current forms at the time the ADA was passed. Federal and state courts that have considered this issue have reached starkly different conclusions â€” some finding that Title III only applies to physical, “brick-and-mortar” facilities, and cannot be applied to non-physical places like Internet websites; other courts reach the precise opposite conclusion, holding that Title III applies to any public accommodation, regardless of whether it exists in physical form, or on the Web. Compare, e.g., Cullen v. Netflix, Inc., 600 Fed. App’x 508 (9th Cir. April 1, 2015); Earll v. Ebay, Inc., 599 Fed. App’x 695 (9th Cir. April 1, 2015) (stating that Title III does not apply to websites that do not have a nexus to a physical place), withNat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015); Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) (stating that Title III applies to Internet websites regardless of whether they have a nexus to a physical place).
The United States Department of Justice (DOJ) is of the view that Title III should be applied to Internet websites. DOJ has also suggested, as early as the summer of 2010, that WCAG 2.0 should be adopted as the formal standard governing how websites should be made “accessible” for purposes of Title III. See generally, DOJ, Advance Notice of Proposed Rulemaking, Accessibility of Web Information Services of State and Local Governments and Public Accommodations (ANPRM), 75 Fed. Reg. 43460, 43463 (July 26, 2010). However, DOJ has not issued any such regulations, and most recently indicated that it likely will not issue any type of Title III website accessibility regulations until 2018 at the earliest. See, DOJ, Fall 2016 Statement of Regulatory Priorities.
This scattered state of the law leaves website owners and operators in a quandary. At least in those circuits that apply Title III to Internet websites, what must a website owner or operator do to make its website accessible? DOJ weighed in on this question in June, 2015. In a Statement of Interest filed in National Association of the Deaf v. Harvard University, Civil Action No. 3:15-cv-30023-MGM (D. Mass. June 25, 2015), DOJ suggested that, in cases in which specific technical standards have not been mandated by law, website owners would be required to comply with Title III’s more general “auxiliary aids standard.” Id. at 15.
The importance of the auxiliary aid standard should not be overlooked. This standard assumes that some goods and services offered by a public accommodation might not be fully “accessible.” In such a case, the ADA obligates covered entities to provide something in addition — an auxiliary aid — in order to ensure that disabled individuals can use and enjoy the public accommodation’s goods and services in a similar manner to how non-disabled individuals enjoy them. In particular, the relevant standard of the ADA obligates covered public accommodations to provide “auxiliary aids and services” “as may be necessary to ensure that individuals with disabilities are not treated differently than other individuals because of the absence of auxiliary aids and services,” unless doing so would “fundamentally alter” the nature of the good, service or facility being offered, “or would result in an undue burden.” 42 U.S.C. §12182(b)(2)(A)(iii).
The auxiliary aids standard does not require public accommodations to adopt a “one-size-fits-all” approach to accessibility. The standard does not require public accommodations to adopt the most advanced technology, and does not require public accommodations to provide the auxiliary aid demanded by a particular disabled individual. Instead, the standard requires more basically that the public accommodation select an auxiliary aid or service that ensures “effective communication” with disabled individuals. See generally, West v. Moe’s Franchisor LLC, 15cv2846, 2015 WL 8484567 (S.D.N.Y. Dec. 9, 2015); DOJ, Nondiscrimination on the Basis of Disability, Final Rule, 56 Fed. Reg. 35544, 35566 (July 26, 1991).
A failure to fully consider the implications of the auxiliary aids standard can create an incomplete picture of the duties and obligations imposed upon public accommodations by Title III. Gil v. Winn-Dixie Stores, Inc., provides a cautionary tale in this regard.
Gil v. Winn-Dixie Stores, Inc.
In Gil v. Winn-Dixie Stores, Inc., Case No. 1:16-cv-23020-RNS (S.D. Fl. June 13, 2017), the plaintiff, Mr. Gil, is legally blind. Id., ECF No. 63 (slip op) at 1-2. He used the Job Access With Speech or the NonVisual Desktop Access screen readers to access information on the Internet. Id. at 2. Winn-Dixie is a supermarket chain headquartered in Jacksonville, FL, which operates a website at www.winndixie.com. While Winn-Dixie does not currently conduct sales directly from its website, its website does allow customers to obtain digital coupons for sales promotions in its stores; to use a “store locator” to find the nearest Winn-Dixie; and to order prescription refills online. Id. at 5. Mr. Gil sued Winn-Dixie Stores because its website had not been programmed to comply with WCAG 2.0, and because his screen readers could not perceive Winn-Dixie’s web pages as a result. Id. at 2-4.
A corporate representative for Winn-Dixie testified that the Company’s website currently did not comply with WCAG 2.0; that it was feasible to modify the website to make it WCAG 2.0 compliant; and that Winn-Dixie was taking steps to do so, reserving $250,000 to cover its remediation efforts. Id. at 4-5. An expert who testified on behalf of Mr. Gil confirmed that Winn-Dixie’s website was not WCAG 2.0 compliant, and that in his opinion, it would cost $37,000 on the high side to audit and bring it into WCAG 2.0 compliance. Id. at 6-7. Insofar as we can determine, neither side mentioned the auxiliary aids standard.
Based upon these basic facts, District Judge Robert Scola entered judgment on behalf of Mr. Gil and against Winn-Dixie. He noted in his written verdict and judgment that it was undisputed that Mr. Gil was visually impaired, and that Winn-Dixie’s physical stores are public accommodations under the ADA. He further reasoned that Title III applied to Winn-Dixie’s website because the website’s functions — “such as 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” — were “undoubtedly services, privileges, advantages, and accommodations offered by Winn-Dixie’s physical store locations” pursuant to the ADA. Id. at 10.
Making no mention of the auxiliary aids standard, Judge Scola then entered judgment against Winn-Dixie, finding: “Winn-Dixie’s website is inaccessible to visually impaired individuals who must use screen reader software. Therefore, Winn-Dixie has violated the ADA because the inaccessibility of its website had denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that Winn-Dixie offers to its sighted customers.” Id. He then issued a wide-ranging injunction which requires Winn-Dixie to, among other things: 1) “implement a Web Accessibility Policy which ensures that its website conforms with the WCAG 2.0 criteria;” 2) ensure that all content provided by third-party vendors on Winn-Dixie’s website conformed with WCAG 2.0; 3) provide mandatory Web accessibility and WCAG 2.0 compliance training on an annual basis to all employees who write or develop programs or code for, or who publish final content to the Winn-Dixie website; and 4) conduct automated accessibility tests on the Winn-Dixie website every three months to identify any instances where the website is no longer in conformance with WCAG 2.0. Id. at 12-13.
Judge Scola further ruled that Mr. Gil’s attorneys would be entitled to recover from Winn-Dixie the reasonable attorneys’ fees and costs they expended in prosecuting this matter to trial. Id. at 10.
Although the record and verdict are sparse, we offer the following general observations about Judge Scola’s ruling.
First, it is worth repeating that, while the DOJ is considering whether to adopt WCAG 2.0 as an enforceable standard for website accessibility, it has not done so as of yet. Hence, while a court might be able to — and in this case did — order a website owner to bring its website into conformance with WCAG 2.0 as a remedial matter, that result certainly is not mandated by Title III itself, which makes no mention of websites, let alone require that websites comply with any particular accessibility standard.
Second, it is notable that the district court’s opinion makes no mention of the auxiliary aids standard. This omission is intriguing, inasmuch as a number of auxiliary aids may very well be available to provide access to “inaccessible” website content. DOJ has opined, for example, that a public “agency with an inaccessible website may also meet its legal obligations [under Title II of the ADA] by providing an alternative accessible way for citizens to use the programs or services, such as a staffed telephone information line,” at least to the extent that the alternative provides “an equal degree of access in terms of hours of operation and the range of options and programs available.” See, DOJ, Accessibility of State and Local Government Websites to People with Disabilities, www.ada.gov/websites2.htm at 2 (updated Oct. 9, 2008).
Under these circumstances, the district court’s failure to mention the auxiliary aids standard should preclude a finding in a different case on a more fulsome record that the owner of an otherwise inaccessible website could comply with its Title III obligations by providing access to website content through alternative means. As the Supreme Court put it long ago, “[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511 (1925).
Third, this is one of the few opinions to deal with accessibility of third-party content displayed on a retailer’s website. With a few notable exceptions, most practitioners and regulators were of the view that website owners and operators are not responsible for third-party content they do not own, operate or control. Judge Scola adopted the opposite approach in this case, finding 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.” Id. at 8. The court indicated that content provided by many of Winn-Dixie’s third-party vendors already was WCAG 2.0 compliant, and that for the rest, Winn-Dixie “has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.” Id.
Gil v. Winn-Dixie is not the first website accessibility case and it won’t be the last. As the DOJ continues putting off its official rulemaking on this topic, courts and litigants will continue to litigate over how the ADA and its auxiliary aids standard properly should be applied to Internet websites.
***** Robert A. Naeve is a partner in the Labor and Employment group of Jones Day’s Irvine, CA, office. In addition to his employment law practice, he represents public entities and private businesses throughout the United States in access litigation involving brick and mortar stores, websites and other forms of technology. Mr. Naeve authored Managing ADA: The Complete Compliance Guide, a two volume treatise on all five titles of the ADA, published by John Wiley & Sons. Jaclyn B. Stahl is an associate in the Business and Tort Litigation group of Jones Day’s Irvine office. The views and opinions set forth herein are the personal views or opinions of the author; they do not necessarily reflect views or opinions of the law firm with which he is associated.
The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.