Demonstrating the minefield facing online retailers, the U.S. District Court, District of Massachusetts refused to dismiss an Americans with Disabilities Act (ADA) accessibility suit filed against

The plaintiffs—three individuals and national disability rights organization Access Now—alleged that the 16 sites operated by the defendant were not sufficiently accessible to blind and visually impaired consumers. They requested a permanent injunction compelling the defendant to bring the sites into compliance with the ADA, specifically Version 2.0 of the Web Content Accessibility Guidelines. responded that it could not be liable for the failure to follow voluntary standards for web accessibility.

But the court denied the defendant’s motion to dismiss, holding that the plaintiffs alleged violations of the ADA and only requested a remedy based on the Guidelines.

“Plaintiffs’ Complaint does not allege that Defendant is liable for failing to comply with the Web Content Accessibility Guidelines,” U.S. District Judge Indira Talwani wrote. “Instead, Plaintiffs allege that Defendant violates the ADA by ‘depriv[ing] blind … individuals the benefits … it affords non-disabled individuals.’ Plaintiffs request compliance with the Web Content Accessibility Guidelines only as a remedy, and do not contend that the failure to comply is a basis for liability in the first instance. Thus, the Complaint seeks to enforce the ADA’s statutory requirements, rather than the Web Content Accessibility Guidelines.”

The court was careful not to state that it was deciding whether the ADA requires Title III entities to satisfy the Web Content Accessibility Guidelines.

Considering the defendant’s fallback argument, Judge Talwani was similarly not persuaded that the issues highlighted by the plaintiffs were isolated incidents of mechanical failure.

“For example, Plaintiffs assert that Defendant’s websites do not have text equivalents for every non-text element; that the websites do not present audio-only or video-only presentations in a way that sight impaired individuals can access, such as an audio or text description of video content; and that its web pages lack titles that describe their topic and purpose,” the court said. “Such allegations are sufficient to support the reasonable inference that the websites themselves—not the screen reader equipment—prevent blind and visually impaired individuals from equal access to the websites, and that Defendant is therefore in violation of Title III.”

The court denied the defendant’s motion to dismiss.

To view the memorandum and order in Gathers v., Inc., click here.

Why it matters: The defendant also attempted to push the suit out of court by pointing to the possibility of official guidance from the Department of Justice (DOJ). In light of the DOJ’s recent decision to pass on rule-making with regard to online accessibility pursuant to the ADA, the court made its own decision instead of waiting. The opinion demonstrates the challenges facing online retailers due to the lack of official guidance.