Florida Federal Court Rules That Winn-Dixie’s Website Violated the ADA

By Thomas J. Barton, Kate S. Gold, Cheryl D. Orr, Meredith C. Slawe and Matthew J. Fedor

Retailers throughout the country have been besieged by lawsuits and demand letters alleging that their websites are not accessible to the visually impaired and that this lack of accessibility violates Title III of the Americans with Disabilities Act (ADA). The plaintiffs’ bar, without definitive guidance from the Department of Justice (DOJ) or the courts, has assumed that retail websites are “places of a public accommodation” under the ADA and that the appropriate compliance level should be the Website Content Accessibility Guidelines (WCAG) 2.0 A or AA.
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Careful, Your Website is Showing! Retailers Should Start Preparing for Website Accessibility Class Actions

By Kate S. Gold, Michael P. Daly, Bradley J. Andreozzi and Alexis Burgess

Retailers have been the predominant targets of a recent wave of demand letters claiming that their websites and mobile applications unlawfully discriminate against disabled customers. These demands come on the heels of the Department of Justice’s (DOJ) confirmation that, in 2018, it will propose accessibility standards for private businesses, based on the accessibility standards it has already proposed for public entities. Even with two months left in the year, 2016 has already seen more single-plaintiff and class action lawsuits actually filed against retailers on this issue than ever before. In the face of an increasingly active plaintiffs’ bar, any retailer with a commercial website or mobile application—especially those operating in California, New York, or Pennsylvania, where the majority of these suits have been filed—should take notice and prepare accordingly.

Title III of the Americans With Disabilities Act (ADA)

Title III of the ADA prohibits discrimination against persons with disabilities in “places of public accommodation”—a term originally construed to mean brick and mortar establishments like stores, restaurants, movie theaters, hospitals, and schools open to the general public. As the Internet has grown increasingly important to everyday life and commerce, however, plaintiffs have insisted that websites count among covered “places of public accommodation” as well.

Courts have varied in their approach to handling this influx of litigation. In the Ninth Circuit (which includes California), websites are not considered places of public accommodation unless there is a sufficient nexus between the online goods and services and a qualifying brick and mortar location. For example, the Northern District of California has held that Target’s website is a place of public accommodation because the same goods are sold online and in its physical stores, Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946, 954 (N.D.Cal.2006), while Facebook, which does not provide any of its services out of a physical location open to the public, is not. Young v. Facebook, Inc., 790 F.Supp.2d 1110, 1114–16 (N.D.Cal.2011). The Third, Sixth, and Eleventh Circuits (which include states such as Pennsylvania, New Jersey, Michigan, and Florida) have similarly required at least a nexus to a physical location open to the public to qualify an enterprise as a place of public accommodation. Meanwhile, the First, Second, and Seventh Circuits (which include states like New York and Illinois, among others) have concluded that non-physical enterprises, including websites, may be places of public accommodation without this limitation.

The Department of Justice’s Anticipated 2018 Regulations

The DOJ has taken the position—which courts may consider but are not yet required to adopt—that commercial websites are generally subject to Title III, regardless of a nexus to a physical place of public accommodation. Consistent with this position, the DOJ issued an Advanced Notice of Proposed Rulemaking in 2010 announcing plans to issue proposed regulations to Title III setting standards of accessibility for public accommodations’ websites. Those proposed regulations are widely expected to be consistent with the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG 2.0 AA), which advocacy organizations have described as the minimum standards for how a website or mobile application should be coded and arranged to ensure it is accessible to the disabled, including primarily the visually and hearing impaired. Indeed, subject to potential exceptions for smaller entities or particular types of content, the DOJ indicated this summer that it plans to adopt the WCAG 2.0 AA standards wholescale in the Title II regulations that will soon govern public entities, and which the DOJ has confirmed will form the framework of its proposed regulations for Title III. The WGAG 2.0 AA standards are too numerous and complex to exhaust here, but include, for example:

  • Alternative text for images compatible with screen-reading software
  • The ability to navigate the website using a keyboard instead of only a mouse
  • Logical and consistent use of headings for ease of navigation
  • Closed captioning and sign language interpretation for audio features
  • Alternative audio description for video features
  • Not using color as the only visual means of conveying information, indicating an action, or prompting a response
  • Text that generally has a contrast ratio of at least 4.5:1
  • Limitations on flashing content which may cause seizures

Although the DOJ’s proposed Title III regulations have been delayed until 2018, this has not prevented plaintiffs from pursuing litigation in the meantime. To the contrary, plaintiffs’ attorneys appear to be leveraging the current uncertainty of this landscape to seek expedited settlements, including not only injunctive relief but also damages and attorneys’ fees.

What is the Potential Exposure for Non-Compliance?

Businesses sued for website inaccessibility face significant exposure. Plaintiffs who prevail in a Title III suit are entitled to injunctive relief and attorneys’ fees. ADA suits are often also accompanied by claims under applicable state law counterparts, such as California’s Unruh Act and Disabled Persons Act that impose significant statutory damages for every violation ($4,000 per violation or actual damages in California).

Because approximately half of the lawsuits being filed on this issue are class actions, these numbers—to say nothing of defense costs—can add up quickly. The seminal 2006 case of National Federation of the Blind v. Target Corp., for example, was the first to certify a class action to enforce Title III and related state laws against an online merchant. In 2008, the court approved a class settlement for $6 million and awarded over $3.7 million in attorneys’ fees.

Recommended Action Steps

It may be tempting to wait for the DOJ’s regulations before working to perfect website compliance. Getting a website up to speed can be time-consuming, however, and may require working with an attorney and a web-design consultant. Online retailers and service providers should get a head start now.

While expensive, many businesses may find that improving their website’s accessibility early will not only mitigate exposure, but will make good business sense, as well. Indeed, experts estimate that nearly 220 million Americans will regularly shop and do other business online in the coming year. Statistically, around 20 million of those shoppers will have at least some visual or hearing impairment. With coding that makes their online storefronts more accessible, retailers may ensure that their goods and services offered online are not out of these customers’ reach.

A Notable Week Indeed – From OSHA to Trade Secrets to ADA Accommodations and Transgender Rights!

By Kelly Petrocelli

It’s been a busy and, let’s say notable, week in the area of employment law. Here’s a quick recap, with more to come in future posts, of what you may have missed if you were focused elsewhere this week.

First, OSHA published a new injury Rule this week. While it does not take effect until January 1, 2017, employers should not wait until then to begin thinking about what changes may be necessary to ensure full compliance in the new year. The rule changes create a new cause of action for employees if they suffer retaliation for reporting a workplace injury, and employers are expected to ensure that policies addressing safety do not discourage employees from reporting such injuries. Large employers will also have some additional reporting requirements to OSHA. And, significantly, and in line with the current administration’s agenda of transparency, OSHA will begin making injury data accessible to the public, after removing any personally identifiable information regarding employees. That’s just a summary, with more to come in a future blog post. Stay tuned.

Second, did you hear that President Obama signed into law the Defend Trade Secret Act of 2016? Yes, that’s right, claims for trade secret misappropriation are not just limited to what the applicable state law provides. The new law creates a federal cause of action for the theft/misappropriation of trade secrets that are “related to a product or service used in, or intended for use in, interstate or foreign commerce.” The law also creates a new mechanism for a court to order the civil seizure of property, ex parte, if an employer can meet certain stringent standards for such an order.

Third, not to be overshadowed by either the President or OSHA, the EEOC published its own resource document this week regarding employer duties to provide leave as a reasonable accommodations in the workplace. While the new resource tracks what the EEOC has been saying for many years (or what we, as employment attorneys, know from tracking EEOC litigation and publications), the new resource delves a little deeper into how employers should be analyzing an employee’s request for leave and may be a helpful resource for employers who may still be under the mistaken impression that simply applying a leave policy (or workplace rule) the same to everyone is acceptable under the ADA (hint: we know that employers must modify policies for individuals with a disability if doing so could be a form of reasonable accommodation). Our mantra of no more “automatic termination” policies can no longer be ignored. This is serious stuff. Lots more to come on this topic.

Fourth, the EEOC was also busy issuing a new fact sheet on bathroom access for transgender employees. The fact sheet is brief, essentially reciting the few decisions issued on the topic, and reiterating for employers that transgender employees must be permitted to use the bathroom that corresponds with their gender identity (not biological sex) and cannot be conditioned on an employee having undergone reassignment surgery. Also, employers beware, providing a separate, single-user bathroom for a transgender employee is a form of discrimination (although you can provide a single-user bathroom for use by all employees). A transgender employee must have equal access to the common bathroom that corresponds with their gender identity, regardless of whether it makes other employees uncomfortable.

These are just a few of the many things that happened this week. Stay tuned for further analysis on these topics and more (including the much-anticipated DOL overtime regulations that could be published as early as next week).

Accessibility of Retailer Websites Under the Americans with Disabilities Act (ADA)

By Thomas J. Barton

Title III of the ADA provides that “no individual shall be discriminated against on the basis of disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or any accommodations of any place of public accommodation….” 42 U.S.C. §12812(a). When the ADA was enacted in 1991, Congress contemplated physical access to places of public accommodation, such as hospitals, schools, housing, restaurants, and retail stores. At that time, Congress did not foresee the rise of the internet or the proliferation of sales of goods and services through retail websites, and therefore did not provide any guidance as to whether or the extent to which retail websites were governed by the ADA’s accessibility requirements.

Originally initiated by the National Federation for the Blind and other advocacy groups, a cottage industry has sprung up challenging accessibility to retail websites by the blind and visually impaired. Every major retailer has been or will soon be subject to these claims. The plaintiffs’ law firms that regularly bring these cases use a handful of blind or visual impaired individuals on a repeating basis.

These lawsuits, which have been filed against retailers such as Sears, Footlocker, Target, and Toys R Us, allege that experts working on behalf of their blind and visually impaired clients have investigated the company websites and have identified limitations and obstacles in the ability of a blind or visually impaired individual to navigate the websites effectively with screen readers or other assistive devices. The failures include the failure of the website to provide alternative explanations of “non-text content,” such as illustrations, and alternatives to non-text prompts or navigational features. The plaintiffs allege that websites are in fact places of public accommodation under the ADA and seek attorneys’ fees and broad remedial relief that requires significant changes to the website’s format, program and content that permit access by the blind and visually impaired.

But the “fix” is easier said than done. First, the courts have not definitely ruled that websites are places of public accommodation covered by Title III, and even presuming they are, there are no current regulations defining the level of accessibility. The plaintiffs’ bar has assumed that the Web Content Accessibility Guidelines (WCAG) AA 2.0, published by the World Wide Web Consortium, are the appropriate compliance standard under the ADA because the United States Department of Justice has adopted the WCAG standards for federal agencies and federal contractors. Also, the Department of Justice has indicated that it intends to issue proposed rules for the private sector, but this proposed rulemaking, now scheduled for July 2016, has been postponed several times in recent years, and many believe that it will be delayed again.

Second, the WCAG’s are themselves vague, subject to broad interpretation and, in many cases difficult to implement. This problem is further compounded when one attempts to apply these standards under the ADA’s language that speaks to “reasonable access,” “alternative means of compliance,” and “under burden.” The truth is that the vast majority of websites are not 100 percent compliant, and none will be because the websites are constantly changing and adding additional content. For example, retailers are increasingly using third-party content, which is often not accessible to the visually impaired.

To illustrate this point, the websites of the National Federation for the Blind (NFB) and the law firms that bring these cases are themselves far from 100 percent compliant. Software programs that are used to conduct preliminary evaluations of websites typically give the website a score or grade. NFB’s website scored a “C+” at one time but has since improved. No website of which this author knows has scored an “A.” Given that 100 percent compliance is not practical, what level of compliance is sufficient? The courts have yet to address this question because very few cases have been litigated on the merits.

When litigating these lawsuits, retailers should consider the appropriate level of achievable compliance and the timeframe involved. Engaging with knowledgeable internal IT personnel or with external IT consultants is important to do at the outset. The cases are as much or more about the technical aspects of website compliance and implementation as they are about the law.
In these lawsuits, the plaintiffs typically propose broad remedial relief that includes development of compliance policies, training, on-going monitoring, and appointment of outside consultants. Each of these individual components has to be considered carefully.

These lawsuits are often brought as individual actions, presumably to permit a quick settlement and to avoid the challenges posed by Rule 23 class certification standards and court approval. Nonetheless, as individual actions, there is no legal bar to additional lawsuits by other individuals. However, the settlements can be confidential.

These lawsuits are not just about remedial relief; they are also about legal fees. In some cases, plaintiffs’ counsel proposes an attorneys’ fee award that is based on the number of URLs or websites, rather than on the reasonable amount of attorney time that would be involved in bringing the case to settlement, which is the appropriate legal standard. Their theory is that the plaintiffs’ attorneys have to pay for future monitoring of the website(s) to ensure compliance with the settlement terms.

Given the nuances of such claims, retailers are well-advised to use experienced counsel that is familiar with these lawsuits to handle the defense.

Takeaways

  • Seemingly, the courts will likely eventually find that private retail websites are places of public accommodation under the ADA, even though such a result was never considered by Congress when the ADA was enacted.
  • Although the plaintiffs’ bar has “assumed” that the courts will require compliance with the WCAG 2.0 AA, it is far from clear what will constitute compliance in a particular case.
  • Retailers that have not faced this issue should conduct evaluations of their websites to determine their levels of compliance, the costs, and the realistic time frames for any remediations. Retailers should use the appropriate legal and IT expertise.
  • Latent privacy claims may surround notice and acceptance of the websites’ terms and conditions of use.

Although some retailers are currently being assailed, the claims will no doubt expand to the education, finance, professional services, and healthcare industries, all of which should conduct a similar analysis of their websites.