Websites may constitute “public accommodations” under the Americans with Disabilities Act (ADA), according to one court. On June 12, 2017, in a case of first impression, a federal district court in Gil v. Winn-Dixie Stores Inc. held that a website that is heavily integrated with physical store locations and operates as “a gateway to the physical store locations” constitutes a service of a public accommodation covered by the ADA.1 This decision comes in the midst of a trend, as we have previously reported, of increasing legal challenges to businesses on the theory that their websites are allegedly inaccessible to disabled persons, in violation of Title III of the ADA. Although the Gil v. Winn-Dixie decision is not binding on courts in other jurisdictions, other courts may consider it and find it persuasive. Businesses with consumer-facing websites should make web accessibility a priority.
In its June 12th decision, the Gil v. Winn-Dixie court rejected the theory that a website can never be a public accommodation as defined by the ADA.
In that case, an individual consumer alleged that Winn-Dixie’s website was incompatible with technology software that assists the visually impaired, in violation of Title III of the ADA. The plaintiff, a blind individual, often utilized technology software (such as JAWS or NVDA) to navigate companies’ websites. Such software works as a screen reader to inform a consumer about the contents of a website and to assist in navigating the various tabs. As a frequent shopper of Winn-Dixie to purchase groceries and to refill or pick up prescription medicines, the plaintiff sought to utilize Winn-Dixie’s website. The capabilities of Winn-Dixie’s website include: placing orders to refill prescriptions; making grocery lists; locating stores; and accessing coupons to use while shopping. Plaintiff alleged that because he was unable to use his technology software to access the website, he began shopping at other grocery stores with websites he could use, but stated he would return to Winn-Dixie once its website was compatible with JAWS or NVDA.
The judge declined to rule that a website is always a public accommodation because the facts of this particular case did not require him to rule so broadly. However, the judge did find that the ADA can cover “intangible barriers…that restrict a disabled person’s ability to enjoy the defendant entity’s goods, services, and privileges,” relying on the Eleventh Circuit’s reasoning in a previous case.2 When deciding whether an “intangible barrier” could include a company’s website, the Gil v. Winn-Dixie court looked to the reasoning in Nat’l Fed’n of the Blind v. Target Corp., finding that “where a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations, courts have found that the website is a service of public accommodation and is covered by the ADA.”3
In concluding that Winn-Dixie’s website was heavily integrated, the court emphasized that it provided users with a pharmacy management system to pick up prescriptions in store, digital coupons that link to rewards cards for in-store purchases, and the ability to find store locations. The court rejected Winn-Dixie’s argument that its website did not prevent the plaintiff’s physical store access. Instead, the judge reasoned that “the ADA does not merely requir[e] physical access to a place of public accommodation. Rather, the ADA requires that disabled individuals be provided ‘full and equal enjoyment of the goods, services, facilities privileges, advantages, or accommodations of any place of public accommodation.’” Winn-Dixie’s online features were especially important for the visually impaired who may have trouble reading coupons at the store or otherwise locating stores. As such, the court held, visually impaired persons were denied the same full and equal enjoyment that sighted customers receive.
The Gil v. Winn-Dixie decision potentially could affect many companies that utilize websites to sell or provide consumer goods and services, such as retailers, financial service businesses, food services, transportation providers, and, no doubt, many more. Without guidance from federal or state legislatures or the Department of Justice on this issue, companies will likely need to develop reliable guideposts to determine whether to incur the expense of making a website accessible by the visually impaired. To be sure, not every website will be considered a place of “public accommodation” requiring compliance with Title III of the ADA, but the Gil v. Winn-Dixie decision serves to caution companies that the analysis may turn on whether a given website is “integrated” or “acts as a gateway” to a physical location.
At the very least, companies with physical public locations and websites that offer location services or other services that can be used at the physical location, should consider that a court may find their websites need to be ADA- compliant.
In our previous blog post, we suggested some steps a company may wish to consider when examining whether its website is accessible to disabled persons and suggested courses of action to take if the website needs updates. We also predicted that legal challenges to companies’ websites under Title III of the ADA would likely increase, and the court’s ruling in Gil v. Winn-Dixie will only continue this trend. Further, if courts reach similar results in other cases, it may serve to encourage plaintiffs’ attorneys who are eager to bring class action lawsuits. If you have not thought about the accessibility of your website- now is the time to do so.
If you find you are the target of an accessibility lawsuit or receive a demand letter from a plaintiff’s law firm, don’t panic. While many of the most prolific plaintiff’s firms are becoming very experienced in pursuing litigation in this area, there are many procedural and substantive defenses that experienced outside legal counsel can use to protect you. The best course is to be prepared.
1 Gil v. Winn-Dixie Stores, Inc., No. 1:16-cv-23020 (S.D. Fla., slip op. June 12, 2017).
2 Rendon v. Valleycrest Prods., Inc., 294 F.3d 1279 (11th Cir. 2002).
3 Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006).