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Website Operators Are On Notice: Recent Events May Force Change By: Eric C. Boughman Since 1990, the Americans with Disabilities Act has required businesses and public entities to make reasonable accommodations to meet the needs of disabled individuals. Most individuals and business owners are aware of the legal requirement to ensure physical locations, such as hotels, restaurants, banks, government facilities and other public areas have wide enough doors and turnaround spaces, gently sloped entry ramps, and other features that provide equal access for all. This awareness has been brought about in part, by education and social values and, when necessary, litigation to force equal access. One area which has gone relatively unnoticed, however, and might be said to be “behind the times” is website accessibility in the digital marketplace. This may all be about to change as recent events stand to impact the issue of website accessibility. Back in 2010, the Department of Justice recognized issues associated with website accessibility and published an Advance Notice of Proposed Rulemaking to issue regulations related to website compliance under the ADA. In its fall 2015, statement of regulatory priorities, the DOJ announced that it was bifurcating the rulemaking to deal separately with state and local government entities under Title II and public accommodations subject to Title III. The DOJ promised to publish a notice of proposed rulemaking (NPRM) under Title II in early 2016 and then under Title III by 2018. The proposed rules promised to clarify the requirements for public entities and accommodations to make “services, programs or activities” offered to the public via the internet “accessible to and usable by individuals with disabilities.” The plan never materialized and, after more delays, the DOJ withdrew the proposed rulemaking on Dec. 26, 2017. Courts are now stepping in where the DOJ has refused to act. A federal court in Florida recently found that supermarket giant Winn Dixie violated the ADA because its website was inaccessible to a sightimpaired plaintiff and, as such, denied the plaintiff the full and equal enjoyment of the good and services that Wynn Dixie offers customers. In Gil v. Winn Dixie, a sight-impaired plaintiff explained how he relied upon website reader technology to navigate websites. In this case, the plaintiff used accessibility software called Job Access With Speech (JAWS), but there are other similar systems such as NonVisual Desktop Access (NVDA”, Apple Voiceover, and Microsoft Windows Narrator. These programs only work, however, if the website the user is trying to access complies with certain web standards and therefore is compatible with the software. As the Winn Dixie decision explains, such accommodations are reasonable and indeed required under the ADA. In the Winn Dixie case, the plaintiff tried to use Wynn Dixie’s website to obtain e-coupons available only online, fill prescriptions, and locate nearest stores when traveling. Ninety percent of the website was not accessible. He further explained that, with his reader software, he could access somewhere between 500– 600 other websites that were compatible.
During trial, Winn Dixie revealed that it spent $2 million to roll out its website in 2015. Winn Dixie’s executives became aware of accessibility issues and set aside $250,000 to address them. Some of Winn Dixie’s executives had come from Australia where accessibility is already mandated.
In 2017, Wynn Dixie spent another $7 million to upgrade its website, but did not address accessibility. Meanwhile, the plaintiff’s expert in the case testified that “simple” source code modifications could correct Winn Dixie’s accessibility issues. The estimated cost of $37,000 was substantially less than the $250,000 Winn Dixie had set aside. Ultimately, the court was not impressed with Winn Dixie’s foot-dragging and found that Winn Dixie violated the ADA because its website was inaccessible to the Plaintiff and denied him the full and equal enjoyment of the goods, services, and accommodations that Winn Dixie offered sighted customers. Whether the cost was $37,000 or $250,000, Winn Dixie should have modified its website to provide equal access. The court entered a final order of injunction forcing Winn Dixie to implement such changes. Why did Winn Dixie, with prior knowledge of deficiencies choose to fight the case through trial? Could Winn Dixie have been arguing that modifications costing $250,000 were unreasonable? It is unclear from the final order, but such position seems indefensible in light of the fact that Winn Dixie spent $9 million on its website between 2015 and 2017 and yet failed to ensure equal accessibility for sight-impaired customers. In any event, businesses are now on notice. Where the DOJ refused to act, the courts are speaking. As noted by the judge in the Winn Dixie case, “Web accessibility is about ensuring that all people are able to use the web regardless of any physical or mental disabilities.” It would behoove all businesses that have customer facing websites to take steps to ensure they are equally accessible to everyone on the internet.