Featured Expert Contributor – Civil Justice/Class Actions

Cruz-Alvarez_FBy Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P., with Rachel Canfield,  Shook, Hardy & Bacon L.L.P.

Ever since the codification of the American’s with Disabilities Act (ADA) in 1990, brick and mortar businesses have been obligated to ensure their physical spaces are accessible to all individuals.  The advent of the internet—and with it, creation of an entirely new, intangible, space—has ushered in a whole new host of legal challenges.  The combination of uncharted legal waters and ongoing regulatory moratoriums has produced extensive litigation over recent years.  In this new frontier, businesses and consumers alike have begun to question whether the ADA also applies to a business’s intangible, technological spaces.

There is very little structure, and even less clarity, in this emerging area of the law.  Federal courts remain split over whether the ADA applies only to physical spaces and to date, no federal agency or organization has been tasked with overseeing or implementing website accessibility guidelines.  Instead, the Web Accessibility Initiative publishes a set of guidelines—the Web Content Accessibility Guidelines (WCAG 2.0)—on web-content accessibility.

In a case of first impression, a federal judge in Florida’s Southern District recently ruled that the ADA applies to websites – kind of.  Serial Plaintiff Juan Carlos Gil filed suit against Defendant Winn-Dixie.  Gil alleged that Winn-Dixie was in violation of Title III of the ADA because its public website was not accessible to the visually impaired.  Following a two-day long bench trial, Judge Robert N. Scola, Jr., entered a Verdict and Order in Gil’s favor.  See Verdict and Order Following Non-Jury Trial, Gil v. Winn-Dixie Stores, Inc., Case No. 16-23020-Civ-Scola (S.D. Fla. June 12, 2017).

The court’s ruling in Gil is particularly interesting, in light of the underlying facts.  At trial, Gil claimed that he shopped at Winn-Dixie for its discounted prices, but sometimes felt uncomfortable when shopping or ordering prescriptions at physical locations, for various reasons.  Winn-Dixie developed its current website, www.winn-dixie.com, in September of 2015, but did not make the website accessible or represent to the public that the website was accessible to the visually impaired.

After Gil learned that Winn-Dixie maintained a website, he attempted to access it, but discovered that it was not compatible with his visually-impaired screen-reader software.  Gil claimed that because of this, he was effectively forced to stop shopping at Winn-Dixie.  Notably, customers cannot make online purchases on the website.  The website merely provides customers with the ability to: (1) acquire “digital coupons” online (for in-store use); (2) refill existing pharmacy prescriptions (for in-store pick-up); and (3) locate physical stores.

During trial, three witnesses testified.  Gil testified to his own experiences.  Rodney Cromwell, a Winn-Dixie corporate representative, testified about the website’s digital applications, as well as Winn-Dixie’s ongoing actions to create an ADA policy for its website.  And Chris Keorack, a private consultant who audited Winn-Dixie’s website for this lawsuit, testified about his findings and the amount of time, level of difficulty, and money that, in his opinion, Winn-Dixie would need to invest to make the website accessible.

Ultimately, the district court granted Gil’s request for injunctive relief and attorneys’ fees.  It found that Winn-Dixie’s failure to provide an accessible website violated the terms of the ADA because “the inaccessibility of its website has denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations that Winn-Dixie offers to its sighted customers.”  To arrive at this conclusion, the district court declined to declare the website, itself, a public accommodation.  Instead, the court applied the nexus theory to conclude that the website is “heavily integrated with and operates as a gateway to its physical stores;” meaning it is a service of a public accommodation, to which the ADA applies.

The ruling leaves behind more questions than answers.  For example, the court found that the website was “heavily integrated” and a “gateway” to the physical stores, notwithstanding that the website limits customer participation to acquiring in-store coupons, refilling existing prescriptions for in-store pick-up, and utilizing a store locator function.  Interestingly, Gil claimed he was effectively precluded from enjoying Winn-Dixie’s goods and services.  The court, however, did not address Gil’s ability to access the physical store locations.  Moreover, the court gave heavy weight to the plaintiff’s consultant and concluded that it would not unduly burden Winn-Dixie to make its website accessible.

The Verdict and Order have no precedential weight.  It is likely, however, that the US Court of Appeals for the Eleventh Circuit will weigh-in on this issue in the near future.  In the interim, businesses with operational websites should: (1) familiarize themselves with the low threshold requirements deemed sufficient to constitute a website that is “heavily integrated with and operates as a gateway to its physical stores;” (2) understand that the law remains unclear as to whether a website itself could be a public accommodation; (3) understand that the law remains unclear as to  which obstacles would be considered unduly burdensome; and (4) recognize that it remains unclear which browsers and screen readers must be accessible through the website.