After years of ongoing and frequent developments on the website accessibility front, we now finally have – what is generally believed to be – the very first post-trial ADA verdict regarding website accessibility. In deciding Juan Carlos Gil vs. Winn-Dixie Stores, Inc. (Civil Action No. 16-23020-Civ-Scola) – a matter in which Winn-Dixie first made an unsuccessful motion to dismiss the case (prompting the U.S. Department of Justice (“DOJ”) to file a Statement of Interest) – U.S. District Judge Robert N. Scola, Jr. of the Southern District of Florida issued a Verdict and Order ruling in favor of serial Plaintiff, Juan Carlos Gil, holding that Winn-Dixie violated Title III of the ADA (“Title III”) by not providing an accessible public website and, thus, not providing individuals with disabilities with “full and equal enjoyment.”
Judge Scola based his decision on the fact that Winn-Dixie’s website, “is heavily integrated with Winn-Dixie’s physical store locations” that are clearly places of public accommodation covered by Title III and, “operates as a gateway to the physical store locations” (e.g., by providing coupons and a store locator and allowing customers to refill prescriptions). This line of reasoning follows the “nexus theory” body of law that has been developing over the past several years. Based upon this conclusion, Winn-Dixie was ordered to: (i) bring its website into conformance with the WCAG 2.0 Guidelines; (ii) develop and adopt a website accessibility policy (publishing aspects of it upon the website); (iii) provide website accessibility training; (iv) conduct regular ongoing compliance audits; and (v) pay Plaintiff’s reasonable attorney’s fees and costs. The parties were left to negotiate the exact timeframe for each requirement.
While this post-trial verdict does not have precedential value in other matters, it does raise a variety of points that businesses should consider as they continue to confront the still-increasing number of website accessibility demand letters and lawsuits:
- The Court applied the nexus theory to the Winn-Dixie website even though customers could not make purchases directly through the website. The Court deemed the ability to obtain coupons and link them to customer discount cards (for use in stores), refill prescriptions (for in-store pick up), and the presence of the store locator sufficient services for a nexus to exist between the brick and mortar locations and the website;
- By applying the nexus theory, the Court was able to avoid having to rule on whether a website is a public accommodation in and of itself (a point of law courts remain split on);
- The Court adopted the WCAG 2.0 Guidelines as the standard of website accessibility, thus following DOJ, the recently refreshed standards for Section 508 of the Rehabilitation Act, the Air Carrier Access Act, and countless private settlements between businesses and advocacy groups or private plaintiffs reached over the past 5 years;
- The Court gave heavy weight to the testimony of an “accessibility consultant” who had conducted an audit of the Winn-Dixie site and testified very favorably for the Plaintiff that he did not believe that remediation process would be terribly difficult;
- Relying upon the accessibility consultant’s representations, the Court went far beyond the scope of most existing website accessibility agreements by holding Winn-Dixie must require that any third-parties – including tech-giants such as Google – who are responsible for aspects of the website to also conform to the WCAG 2.0 while operating as part of the Winn-Dixie website;
- The Court was unmoved by Winn-Dixie’s estimates that the remediation work to bring the website into conformance with WCAG 2.0 could cost upwards of two hundred and fifty thousand dollars ($250,000), and did not believe that such an amount would constitute an undue burden, noting that in the preceding 2 years the company had spent a total of approximately nine million dollars ($9,000,000) to launch a new website and then modify that new website to roll out a new customer rewards system; and, finally, in the one somewhat helpful piece for businesses;
- The Court noted that in making a website accessible, a business need not ensure that it is accessible on all browsers and when read by all screen reader programs, provided that it is accessible on “main browsers” (e.g., Google Chrome, Internet Explorer, and Apple Safari) when read by “main screen reader programs” (e.g., JAWS and NVDA).
Given the Trump Administration’s edict against the promulgation of new regulations (without first eliminating multiple existing similar regulations) it is increasingly unlikely that DOJ will issue private sector website accessibility regulations in the near future. Therefore, businesses can expect advocacy groups and private (often serial) plaintiffs to continue to threaten and/or bring website accessibility actions under both the ADA and corresponding state laws. With that in mind, this verdict serves as a strong reminder of the risks of litigating a website accessibility matter, at least in situations where there is a reasonably clear nexus between a brick and mortar place of public accommodation and the website.