Many blog sites, such as this one which appears in my blogroll,  are reporting on a website accessibility case that went to verdict and found in favor of the plaintiff. The case is Gill v. Winn-Dixie Stores, Inc., 2017 U.S. Dist. LEXIS 90204 (S.D. Fla. June 13, 2017). As is usual, the case is divided into categories and they are: facts; court’s reasoning; terms of injunction; and takeaways. The reader is free of course to concentrate on any or all of the categories.

I

Facts:

Winn-Dixie is the owner and operator of a regional chain of grocery stores, some of which have pharmacies. In addition to its grocery stores, it has a website. That website was not accessible in a big way to individuals who use screen readers. As a result, the plaintiff could not for example: get coupons for shopping without having a friend read the coupon from a newspaper or by asking employees to find coupons for him; could not refill prescriptions online; and could not access subcategories on the website. Plaintiff travels with his laptop that contains screen reader software to several cities in Florida to participate in Paralympic events and wants to be able to find Winn-Dixie stores through their website because of its low prices. Both Publix and Walgreens have websites accessible to screen reader software. Winn-Dixie does not have an ADA policy for its website. For that matter, there is not an accessibility notice on its website. Winn-Dixie is taking steps to modify the website and will modify the website to make it accessible to persons with disabilities and is considering WCAG guidelines, among other things, in determining how to address the accessibility issue. Their present website has not been tested for use with universal screen readers. Executive management of Winn-Dixie is new with many of them coming from Australia where disability accessibility was mandated, and so that group decided to modify the website to make sure it is accessible to people with disabilities. There are six different third parties interfacing with the website and so those third parties may also have accessibility issues and Winn-Dixie is working with those parties. Winn-Dixie has set aside $250,000 to make its website accessible. Determining the appropriate standard for websites is not a simple matter because there are multiple screen readers and multiple browsers needing to be accommodated. The only way to have a digital coupon linking up to a customer’s reward card is through the website. When the website was created in September 2015, there was no discussion whatsoever about the website’s accessibility to persons with disabilities. Also, when the rewards program was rolled out in early of 2017, website modifications were made at a cost of $7 million, but there was no effort to make the website accessible to people with disabilities.

II

Court’s Reasoning

  1. Winn-Dixie has set aside $250,000 for the project. There was testimony from a person whose company makes websites accessible saying that making the website accessible might cost as little as $37,000.
  2. The federal government’s access board through §508 of the Rehabilitation Act, finalized January 2017, virtually adopted the WCAG guidelines.
  3. Google, Chrome, Internet Explorer, and Safari comply with WCAG guidelines. For that matter, I use Mozilla Firefox and I have not had a problem. While I use voice dictation technology and not screen readers, chances are, though I can’t say definitively, that screen readers would have similar success on Firefox as to what I do. In fact, over the years Google has caused considerable difficulty for me with respect to my voice dictation software, though I don’t know if those problems haven’t been rectified; I am too scared to take a chance….
  4. Regardless of whether the cost for making the website accessible was $37,000 or $250,000, that cost pales in comparison to the $2 million the company spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for its rewards program. A Winn-Dixie employee unequivocally testified that making the modifications was feasible and that Winn-Dixie was currently in the process of making those modifications.
  5. Winn-Dixie has a legal obligation to require third-party vendors operating certain parts of their website to be accessible to persons with disabilities if they want to operate within the Winn-Dixie website.
  6. Plaintiff made sufficient allegations to show that he intends to return to Winn-Dixie stores if the website is made accessible.
  7. The 11th Circuit has said in Rendon v. Valleycrest Productions, Inc. that the plain language of title III of the ADA covers both tangible, physical barrier preventing a person with a disability from accessing a public accommodation as well as intangible barriers restricting a person with a disability’s ability to enjoy the defendant entity’s goods, services and privileges.
  8. Where a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations, then a website is a service of the public accommodation and covered by title III of the ADA. As such, it isn’t necessary to decide whether the website itself is a place of public accommodation because the facts clearly demonstrate that the website is heavily integrated with Winn-Dixie’s physical store locations and operates as a gateway to the physical store locations.
  9. The ADA does not merely require physical access to a place of public accommodation. Rather, the ADA requires persons with disabilities be provided full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
  10. Online pharmacy management, the ability to access digital coupons linking automatically to a customer’s rewards card, and the ability to find store locations are quite clearly services, privileges, advantages, and accommodations offered by Winn-Dixie’s physical store locations. Such services, privileges, advantages, and accommodations are critically important for individuals with visual impairments since it is difficult, if not impossible, for such individuals: to use paper coupons found in newspapers or in the grocery stores; to locate the physical stores by other means; and to physically go to a pharmacy location in order to fill prescriptions.
  11. Winn-Dixie corporate representative unequivocally testified that modifying the website to make it accessible for persons with visual impairments was feasible.
  12. Remediation measures conforming to WCAG 2.0 guidelines will provide the plaintiff and other consumers with visual impairments the ability to access Winn-Dixie’s website and permit the full and equal enjoyment of the services, facilities, privileges, advantages, and accommodation provided through their website.
  13. Plaintiff is entitled to injunctive relief and to attorneys’ fees to be worked out later through the attorneys’ fees process.

III

Injunctive Relief Terms

  1. Shall not, no later than __(date)__________, deny individuals with

disabilities, including the Plaintiff, the opportunity to participate and benefit

from the goods, services, facilities, privileges, advantages, and accommodations

provided through its website www.winndixie.com. The website must be

accessible by individuals with disabilities who use computers, laptops, tablets,

and smart phones.

  1. Shall not, no later than __(date)__________, provide individuals with

disabilities, including the Plaintiff, an unequal opportunity to participate and

benefit from the goods, services, facilities, privileges, advantages, and

accommodations provided through its website www.winndixie.com. The website

must be accessible by individuals with disabilities who use computers, laptops,

tablets and smart phones.

  1. No later than ________(date)_______, shall adopt and implement a Web

Accessibility Policy which ensures that its website conforms with the WCAG 2.0

criteria.

  1. No later than __(date)__________, shall require any third party vendors

who participate on its website to be fully accessible to the disabled by

conforming with WCAG 2.0 criteria.

  1. No later than __(date)__________, shall make publicly available and

directly link from the www.winndixie.com homepage, a statement of Winn-

Dixie’s Accessibility Policy to ensure the persons with disabilities have full and

equal enjoyment of its website and shall accompany the public policy

statement with an accessible means of submitting accessibility questions and

problems.

  1. No later than __(date)__________, and at least once yearly thereafter, shall

provide mandatory web accessibility training to all employees who write or

develop programs or code for, or who publish final content to,

www.winndixie.com on how to conform all web content and services with

WCAG 2.0 criteria.

  1. No later than __(date)__________, and at least once every three months

thereafter, shall conduct automated accessibility tests of its website to identify

any instances where the website is no longer in conformance with WCAG 2.0.

  1. If the Plaintiff believes the Injunction has been violated, he shall give

notice (including reasonable particulars) to the Defendant of such violation.

The Defendant shall have 30 days from the notice to investigate and correct

any alleged violations. If the Defendant fails to correct the violation, the Plaintiff

may then seek relief from the Court.

  1. In light of what the Court has already found to be the Defendant’s

sincere and serious intent to make its website accessible to all, this Injunction

will expire in three years.

 

IV

Takeaways

  1. This is the first case that went to trial and verdict dealing with web accessibility.
  2. Testimony showed that it would be a minimum of $37,000 to fix the website and perhaps as high as $250,000 to fix the website.
  3. You are always better off getting out in front of this from the get go rather than having do it later when someone calls you on it. Be sure to beta test it with persons with disabilities.
  4. It is a bit mind-boggling to me that the redesign of the website and the rewards program did not incorporate persons with disabilities into it at all. Legal malpractice?
  5. It would be interesting to see the laws in Australia. Many years ago, back in the early 90s in fact, I ran into an attorney from Australia at a place in Maine where I was vacationing, and he mentioned to me that Australia had a very similar approach to disability rights as the United States did with the ADA. This case may be an example of that.
  6. The case adopts the gateway theory for when a website must be accessible to persons with disabilities. We discussed that theory here. The gateway theory is definitely the trend in terms of trying to figure out when a website must be accessible to persons with disabilities.
  7. As a matter of preventive law, companies are going to want to look at the WCAG 2.0 guidelines when it comes to their websites.
  8. Title III entities are prohibited from contracting with other entities that discriminate on the basis of disability. 42 U.S.C. §12182(b)(1)(iii). Accordingly, companies want to make sure their third-party vendors that are integrated into their website are also accessible to people with disabilities.
  9. Don’t forget that screen readers are not the only issue. There are people who use voice dictation technology but not screen readers, such as myself. The two technology don’t always act the same way.
  10. This case correctly takes the contrary position to the case we discussed here when it says that it is not critical for a person to have to show up in the stores to have a claim against the store for an inaccessible website. In other words, the ADA goes beyond requiring physical access to a place of public accommodation to requiring that persons with disabilities are provided full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
  11. By its injunctive relief terms, the court is equating title III’s meaningful access requirement with compliance with WCAG 2.0; a revolutionary approach.
  12. I will be surprised considering the tenor of the decision if Winn-Dixie appeals it. The court also specifically notes that Winn-Dixie is serious about fixing the problems and so that is another reason why I don’t think this case will be appealed. I get that, but by not appealing, you now have a case gone to verdict equating meaningful access with WCAG 2.0 even though the federal government has not taken a definitive position on that by regulations. This also raises the issue of why the case did not settle in the first place. A settlement, of course, would not have the same impact as a case tried to verdict where the defendant lost and WCAG 2.0 was imposed at the standard for meaningful access.
  13. The settlement agreement requires accessibility by individuals with disabilities with respect to their computers, laptop, tablet, and smart phones. Personally, I can tell you that voice dictation technology may have a way to go on laptops, tablets, and smart phones. Again, this decision focuses on screen readers and not on voice dictation technology, but companies would want to be aware that persons with disability use both and perhaps, as in my case, one or the other.
  14. The first two classes of the injunctive relief terms are confusing and threw me at first. They say the same thing except one refers to not denying individuals with disabilities… While the other refers to providing individuals with disabilities….
  15. A statement of accessibility policy will need to be on their webpage.
  16. At least once a year, Winn-Dixie will have to provide mandatory web accessibility training to all employees writing or developing programs or code on how to conform all web content and services with WCAG 2.0.
  17. Winn-Dixie will have to continually monitor its compliance with WCAG 2.0.
  18. The injunction continues for three years.
  19. Interesting that the injunction terms does not mandate the appointment of a person who job is to make sure that Winn-Dixie’s website is complying with the ADA. The company might want to do that anyway.
  20. When doing website audits, make sure the accessibility of the website works for people with multiple disabilities, for example persons who are deaf and use voice dictation technology, deaf-blind, etc. I have seen websites that are perfectly acceptable but break down when a user has multiple disabilities and uses technology to mitigate against that.
  21. I would expect plaintiff’s attorneys’ fees to be substantial.
  22. Good idea to have a website accessibility policy, alternative ways for solving any website accessibility issues, and a person in charge of all of that.
  23. When dealing with third parties, make sure you have an indemnification agreement, as discussed here.

One Response to Website Accessibility Case Goes to Verdict and it is Not in Favor of Defendant

Leave a Reply

Your email address will not be published. Required fields are marked *