This federal lawsuit may affect your liability for your website

Although there have been hundreds of cases filed against retailers and corporations since 2015 by disabled individuals, it is the first of its kind to have gone to trial.

In his decision for Gil v. Winn Dixie, Judge Robert Scola, Jr. pointed out that Winn Dixie is responsible for providing the same functionality on its web site for all users, including those with disabilities. Most significantly, Judge Scola found that Winn Dixie was in violation of Title III of the Americans with Disability Act — which handles physical accommodations like stores, restaurants, movie theaters, and other places of business — because the website is so tightly integrated with the chain’s nearly 600 physical locations.

Like many other supermarket chains, Winn Dixie offers in-store pharmacies, coupons, and loyalty programs and provides support for these services through its website. Persons with blindness will often favor using these services online as they require less dependence on busy store staff, who are often annoyed by requests for help. Crowded in-store pharmacies pose additional privacy issues, as a blind person has no way of knowing who is overhearing their conversation with the pharmacist.

Juan Carlos Gil, the plaintiff, had heard ads on TV for the Winn Dixie web site where he could access refill prescriptions and access coupons online. So he tried using the website with his screen reader, an application that reads the text that is displayed on the computer screen with a speech synthesizer or a braille display. He found that 90% of the tabs on the site didn’t work, leaving him unable to access most of the Winn Dixie website’s functionality.

A website can be treated like a physical location — sometimes

To date, the courts have been split over whether websites in general are actually “public accommodations” as defined by Title III. In this case, Judge Scola felt that the website’s heavy integration with the services offered by Winn Dixie’s bricks-and-mortar stores allowed him to decide this case without making a broader ruling on all websites.

For retailers, hotels, and any other organization with a public physical presence, this case reinforces their legal responsibility to provide websites that are “accessible by individuals with disabilities who use computers, laptops, tablets and smart phones.”

Your responsibility extends to third-party content

The court also extended this responsibility to include content from third-party vendors who interface with the site, such as Google and American Express. In the future, website owners like Winn Dixie will not only need to ensure that their own content is accessible, but they will also be responsible for all third party vendors. The burden will now be on the website owners to select only those vendors that provide fully accessible content.

You’re responsible for testing on major screen readers

Most websites are tested for compliance on major browsers like Google Chrome, Internet Explorer, Firefox and Safari. Other lesser-used browsers can be treated as edge cases if they don’t work properly. As stated in Judge Scola’s decision, this approach will also be applied to screen readers:

If a company’s website is compatible with a main screen reader program such as NVDA or JAWS and is not compatible with a lesser used screen reader program, the burden is on the program, not the company to resolve the problem.

What’s the standard for compliance?

The US Department of Justice has been promising to provide guidelines for web accessibility since 2010, and “the department has now said it plans to publish those in 2018,” according to Legal NewsLine.

In the interim, the web publishing industry and the courts have been using the international standards set out in the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA) as the yardstick for compliance. Gil v. Winn Dixie makes it clear that WCAG 2.0 is the standard for compliance, at least for now.

What’s the cost of compliance?

Under Title III, a plaintiff is not entitled to damages, but is typically awarded attorney’s fees, which can total millions of dollars — as was the case in National Federation of the Blind v. Target Corp. Had this been a class-action suit, the judge could have ordered that an additional relief fund be set up, which could run several million dollars in addition.

Winn Dixie claims that the cost of fixing the website will be $250,000, which is a very small fraction of the cost of the site’s redesign. From my own experience at Traktek Partners that seems quite high: most of the issues in the complaint are likely corrected by fixing templates and scripts used globally on the website. Even with a generous site audit and QA process, the bill for remediation should likely be half of Winn Dixie’s figure.

Regardless of the exact cost, it’s far less costly to test for accessibility and invest in remedies before the fact than it is to risk a lawsuit.

Sources and further reading:


Forbes: First-Of-Its-Kind Trial Goes Plaintiff’s Way; Winn-Dixie Must Update Website For The Blind

Legal NewsLine: Attorneys: DOJ’s years-long delay on regulations hurting companies facing disabilities lawsuits over their websites

JDSupra: First Federal Court Rules That Having An Inaccessible Website Violates Title III Of The ADA

Seyfarth Shaw: A Cautionary Tale: DOJ Intervenes in Another Web Accessibility Lawsuit