Since the Americans with Disabilities Act–often referred to as the ADA—was passed by Congress in 1990, lawsuits under the Act have been quite common. These lawsuits, until recently, have focused on physical or architectural barriers to places of public accommodation such as restaurants, retail stores and strip malls. The emphasis has been on items such as handicapped parking spaces, entrance ramps into buildings, public restrooms and doors with the allegation being that such items have not been accessible to persons with defined physical disabilities.
A whole new trend, however, is taking shape with respect to lawsuits under the ADA. Courts throughout the country are seeing more and more ADA cases where the claim is that the owner or operator of a website has not taken appropriate measures or steps to make that website accessible to the legally blind or visually impaired. These are routinely referred to as website accessibility cases, and we are seeing what is, perhaps, a disproportionate number of these being filed in federal district courts in Florida.
One of the biggest issues with website accessibility cases is that websites did not exist when the ADA was enacted nearly 30 years ago. Certainly, the Congress could not have envisioned website accessibility lawsuits back then. There are no regulations and no mandates on website accessibility. All that exists, at this point, are the Web Content Accessibility Guidelines or WCAG. These are simply guidelines developed by a number of private organizations whose desire is to make websites accessible to or for all people.
While the number of website accessibility cases is growing, to date, there appears to have been only one such case that has actually gone to a trial on the merits. The case, Gil v. Winn-Dixie Stores, Inc., was filed in the United States District Court for the Southern District of Florida. The court there found against Winn-Dixie and concluded that its website violated the visually-impaired plaintiff’s rights under the ADA. Apparently, the vast majority of the search tabs, as well as the search box, on Winn-Dixie’s website did not function with screen reader software designed for those with visual impairments.
A proposed amendment to the ADA, the ADA Education and Reform Act, has passed the House of Representatives and is pending before the Senate. This amendment requires notice of ADA violations to a defendant, prior to the filing of a lawsuit, and the opportunity to cure. If passed, it remains to be seen how this amendment will impact website accessibility lawsuits.