In Gil v. Winn-Dixie Stores, Inc., Civil Action No. 16-23030-Civ-Scola, (S.D. Fla. June 13, 2017), the United States District Court for the Southern District of Florida ruled after a bench trial that Winn-Dixie Stores, Inc. (“Winn-Dixie”), violated Title III of the Americans with Disabilities Act (“ADA”) because its website was inaccessible to a visually impaired customer.
The facts in this case largely were not disputed. Juan Carlos Gil is legally blind and has cerebral palsy, but he wears glasses to help protect his eyes from foreign objects. Gil is able to use a computer, even though he cannot see the screen, by using technology, such as JAWS or occasionally other screen reader software. By using this software, every time he hits the tab key or shift tab, the program will instruct him on what he needs to type. Gil has been a customer of Winn-Dixie for a number of years, finding its prices are reasonable, which is particularly helpful considering his modest income. Among other things, Gil uses the Winn-Dixie to fill prescriptions, but the last time he used the Winn-Dixie pharmacy was about two and one-half to three years ago.
In 2015 or 2016, Gil learned that Winn-Dixie had a website and he was informed that it was accessible to the visually impaired. Gil wanted to refill his prescriptions online so he did not have to orally announce at the store what mediations he was filling. When he accessed the website, however, approximately 90% of the tabs did not work and he was unable to access sub-categories of material on the website, including the store locator. While Gil has experienced some companies putting an accessibility notice on their website to advise individuals that they are working on improving the website for the visually impaired, he found no such notice on the Winn-Dixie website. In contrast, Gil has found Publix and Walgreens had accessible websites with his screen reader software. During the trial, a representative of Winn-Dixie testified that Winn-Dixie was presently building an ADA policy for its website, but it was not effective yet. To this end, Winn-Dixie had set aside $250,000 for the project to make its website accessible.
If a webpage is using the industry standard (Web Content Accessibility Guidelines (“WCAG”) or following the World Wide Web Consortium accessibility guidelines, then the screen reader software should work on the website. Chris Keroack works at Equal Entry, a company that tests mobile and web software for accessibility issues. Keroack conducted an analysis of the Winn-Dixie website (including the sections of the site designed for digital coupons, store locator, and pharmacy). He concluded that most of the accessibility problems could be remedied with simple modifications of one or two source codes, which he estimated his company could fix for a cost of approximately $37,000 (which would include a full audit of the website), and it is generally not difficult to coordinate with third parties, such as Google Maps for store locator purposes.
Title III of the ADA (the public accommodation provision, as opposed to the employment provision) prohibits the owner of a place of public accommodation from discriminating “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, adventures, or accommodations of any place of public accommodation.” The ADA defines “public accommodation” as a private entity whose operations affect commerce within one of twelve enumerated categories. The court noted that courts are split as to whether the ADA limits places of public accommodation to physical spaces. The court further noted that courts that have held the ADA applies only to physical spaces also have held that the goods and services provided by the place of public accommodation must have a sufficient nexus to a physical space in order for the ADA to apply. Although the United States Court of Appeals for the Eleventh Circuit (the appellate court governing the Southern District of Florida) had not ruled on whether websites constitute places of public accommodation under the ADA, the court noted that the Eleventh Circuit had stated that Title III of the ADA covers both tangible, physical barriers and “intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures that restrict a disabled person’s ability to enjoy the defendant entity’s goods, services and privileges.” The court also noted that other courts have held “[w]here a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations . . . the website is a services of a public accommodation and is covered by the ADA.”
The court concluded that Winn-Dixie’s website is a place of public accommodation because “the website is heavily integrated with Winn-Dixie’s physical store locations and operates as a gateway to the physical store locations.” The court rejected Winn-Dixie’s argument that Gil had not suffered any harm because he was not denied access to the physical store locations as a result of the inaccessible website. To this end, the court explained that the ADA does not limit its requirements to physical access, but to the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” The court specifically noted that Winn-Dixie’s website offered an “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,” which were “undoubtedly services, privileges, advantages, and accommodations offered by Winn-Dixie’s physical store locations” and which were “especially important for visually impaired individuals since it is difficult, if not impossible, for such individuals to use paper coupons found in newspapers or in the grocery stores, to locate the physical stores by other means, and to physically go to a pharmacy location in order to fill prescriptions.” As a result of these findings, the court issued an injunction, requiring Winn-Dixie to make its website accessible to visually impaired individuals, the details of which are beyond the scope of this blog post, and the court awarded Gil the attorneys’ fees and costs he incurred in this case.
The court’s decision in Gil is significant because it joined the courts that have found websites can be places of public accommodation that require accessibility for individuals with disabilities, including individuals who are visually impaired. As companies continue to integrate their websites into their overall business plan and customer experience, it appears likely that more courts will come to similar outcomes. Thus, companies should be mindful of potential ADA ramifications when constructing their websites, including how courts in the jurisdictions where they operate have ruled on these issues.