Web Content Accessibility Guidelines

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.

When the Americans with Disabilities Act—the ADA—became  law in 1990, websites, which are so common a part of business and life these days, did not exist.   Nearly 30 years later, websites are now the driving force behind what is the most dramatic new and growing trend for lawsuits under the ADA, namely claims against owners and operators of websites.  The gist of these claims is that the websites are not properly accessible to those who are visually impaired or legally blind.

The number of ADA lawsuits has increased significantly in the last four years.  In 2017 alone over 7,600 lawsuits were filed as compared to a little over 2,700 such lawsuits in 2013, an increase of nearly 65%.  ADA lawsuits continue on the rise in 2018 with website accessibility cases accounting for the increase.  Florida and California, in particular, are two states where large numbers of lawsuits have been and are being filed.

Since website accessibility cases are not, in all likelihood, going away anytime soon, a question to ask is what is the owner and operator of a website, an owner and operator who desires to be proactive in preventing such lawsuits, to do?  Are there any regulations or guidelines in effect that can be followed or implemented earlier rather than later so that such an owner or operator can prevent rather than defend a lawsuit?

Unfortunately, there are no regulations in effect that can provide guidance or direction to owners and operators of websites.   The federal government has not communicated any desire to intervene on the issue.  Indeed, the Department of Justice has abandoned rulemaking on website accessibility cases even though it had indicated, years earlier, that it would issue regulations.   Those regulations presumably would and could provide a roadmap that owners and operators of websites currently do not have.

The only real direction that exists for owners and operations of websites at the present time comes in the form of guidelines published by the World Wide Web Consortium–or W3C—a private group of experts.    These guidelines are the Web Content Accessibility Guidelines (WCAG).  The WCAG Guidelines 2.0 were the guidelines specifically referenced by the United States District Court for the Southern District of Florida,  a little over a year ago, in the case of Gil v. Winn-Dixie Stores, Inc., where Winn-Dixie’s website was found to have violated the rights of a visually-impaired plaintiff under the ADA.

Earlier this month, the W3C updated the WCAG Guidelines 2.0.  The updated guidelines are known at the Web Accessibility Guidelines Level 2.1.   These, however, are simply guidelines; they are not regulations and they are not law.  For there to be clear, unequivocal direction to owners and operators of websites, equally clear and unequivocal law, in the form of regulations, is what is necessary.