• Don’t Get Caught Whistling Winn-Dixie: Rethinking ADA Compliance After First-of-its-Kind Verdict
  • June 30, 2017 | Authors: Lewis S. Wiener; Alexander P. Fuchs
  • Law Firms: Eversheds Sutherland (US) LLP - Washington Office; Eversheds Sutherland (US) LLP - New York Office
  • On June 13, 2017, the US District Court for the Southern District of Florida issued a verdict in a first-of-its-kind federal trial involving the alleged inaccessibility of a website under the Americans with Disabilities Act (ADA). Following a three-day bench trial, Judge Robert Scola ruled, in Gil v. Winn-Dixie, that grocery store chain Winn-Dixie violated Title III of the ADA by maintaining a website that was inaccessible to plaintiff Juan Carlos Gil, and other blind or visually impaired individuals, preventing them from being able to avail themselves of certain services related to Winn-Dixie’s stores, including the ability to download coupons, refill prescriptions or find store locations. Civ Act No. 16-23020 (S.D. Fla. June 13, 2017). As a result of these violations, Judge Scola imposed a three-year injunction against Winn-Dixie, including mandatory updates to Winn-Dixie’s website, and awarded plaintiff attorneys’ fees and costs.

    The verdict in this case is notable for several reasons. First, despite the large volume of website accessibility lawsuits filed over the last few years claiming violations of the ADA, this is the first known federal case to proceed to trial. As discussed in other Eversheds Sutherland legal alerts, the lack of compensatory damages available under the ADA and the relatively limited attorneys’ fees sought by plaintiffs in these cases have led many defendants to settle early in litigation. As a result, this is the first court to find, following a trial, that a business violated Title III of the ADA by having an inaccessible website.

    Second, the court based its finding that the website was inaccessible on testimony from Plaintiff that 90% of the site could not be accessed while using JAWS, a common screen reader software, and on expert testimony confirming the alleged inaccessibility following an audit of the site. Notably, Winn-Dixie did not dispute the inaccessibility of the website, and instead focused its arguments on whether the site constituted a place of public accommodation under the ADA. Notwithstanding the relatively fact-intensive nature of the court’s analysis, the injunction mandates that Winn-Dixie must bring its website into compliance with the Web Content Accessibility Guidelines (WCAG) 2.0, which are independent guidelines developed by a private group of accessibility experts.

    Non-compliance with WCAG 2.0 has been used frequently by plaintiffs as a basis for bringing website accessibility suits under the ADA, despite the fact that the guidelines have not been adopted by the Department of Justice as the formal standard for ADA compliance. Notably, the court did not find that the site’s failure to meet WCAG 2.0 constituted a per se violation of the ADA.

    The court’s adoption of WCAG 2.0 as a remedy, but not as a basis for its finding that Winn-Dixie’s website violated the ADA, presents an interesting corollary to a recent decision by the Northern District of California which rejected claims for violations of the ADA based on WCAG 2.0 non-compliance. In Robles v. Dominos, CV 16-06599, 2017 WL 1330216 (N.D. Cal. Mar. 20, 2017), the plaintiff alleged that Domino’s website violated the ADA because it failed to meet WCAG 2.0 AA guidelines. The Robles court rejected plaintiff’s arguments on due process grounds because rules or guidance on the applicable standard for website compliance under the ADA has not been issued. The Robles court dismissed the case for plaintiff’s failure to identify an ADA violation, specifically noting that Domino’s included a banner on its site, readable by screen reader software, that directed blind users to a 1-800 number where they could receive assistance from an operator to navigate the website and obtain goods and services available on the site.

    The Gil and Robles cases highlight that while non-compliance with WCAG 2.0 may not constitute a per se violation of the ADA, courts may view the guidelines as the benchmark for website accessibility. Moreover, although the Gil decision is not binding on other federal courts, it is instructive on how the courts may view ADA website compliance should cases proceed to trial. The decision is also significant because it may embolden plaintiffs resulting in a new wave of ADA website accessibility lawsuits.