Lawsuits under Title III of the Americans with Disabilities Act, or ADA, based upon a company’s alleged failure to make its website accessible to the visually impaired or legally blind exploded in 2017 and 2018.  In  Gil v. Winn-Dixie, 2017 U.S. Dist. LEXIS 90204, the only known website accessibility case to actually go to trial, Judge Robert N. Scola, Jr. of the United States District Court for the Southern District of Florida ruled in favor of Gil, holding that Winn-Dixie’s website was indeed a place of public accommodation inaccessible to persons with visual impairments and holding that:  a.) the website had to be fully accessible; and b.) Winn-Dixie was required to implement the Web Content Accessibility Guidelines (WCAG) 2.0 for its website by an agreed-upon date.

The Gil v. Winn-Dixie case is currently on appeal to the United States Court of Appeals for the 11th Circuit.  The appellate court heard oral argument on October 4, 2018.  Winn Dixie’s arguments were as follows:

  • websites are not places of public accommodation under Title III of the ADA;
  • the WCAG are not law and the trial court’s adoption of those guidelines violated due process;
  • Winn Dixie is in compliance with the ADA because Gil had not been deprived of the full benefit of and equal access to the services and goods in Winn Dixie’s stores.

The 11th Circuit has not yet issued its decision on the appeal.  The outcome—particularly if there is a reversal—can potentially dramatically impact the landscape of website accessibility cases, particularly in Florida.

In another important website accessibility case under the ADA, Haynes v. Dunkin’ Donuts, LLC et al., Case No. 18-10373, the 11th Circuit, in a written opinion dated July 31, 2018, reversed the lower court’s dismissal of the website accessibility complaint of Dennis Haynes, a legally blind person.  The lower court had concluded that Haynes had failed to properly allege a nexus between barriers to accessing the website and an inability to access services and goods at a physical store.  In reversing and remanding the case back down to the trial court, the appellate court found that Haynes had demonstrated “a plausible claim for relief under the ADA.”  Thus, the initial victory for those defending ADA lawsuits arising from the trial court’s decision in Haynes was essentially wiped out by the 11th Circuit’s reversal.

Finally the future of the ADA Education and Reform Act of 2017 remains uncertain.  The bill, passed by the House of Representatives, requires amongst other things, pre-suit notice to an owner or operator of a place of public accommodation and an opportunity to cure prior to the filing of a lawsuit under Title III of the ADA.  That bill, however, does not appear to have gain any real traction in the Senate where 43 Senators—enough for a filibuster—have pledged, in writing, to block a vote on the Act.

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.