Back in the Spring, I posted about the next frontier in ADA Title III litigation (web site accessibility), see my posts here and here. Since those posts, the next frontier has shown up, with a vengeance, in the Southern District of Florida.
This summer, the first trial (in the country) on ADA web site accessibility was held right here in the matter of Carlos Gil v. Winn-Dixie Stores, Inc., Civil Action No. 16–23020 (S.D. Fla.).
Following trial in the Winn-Dixie matter, U.S. District Judge Robert Scola ruled that:
- Winn-Dixie’s website was a “place of a public accommodation” under the ADA.
- Based on the testimony of the plaintiff and his expert, Winn-Dixie’s website was not sufficiently accessible.
- Accordingly, the court issued injunctive relief and also awarded attorneys’ fees.
- The injunctive relief included a requirement that Winn-Dixie adopt and implement a website accessibility policy that ensures its website conforms to the WCAG 2.0 criteria. Although the court did not note specify a level of compliance with WCAG 2.0 (A, AA, AAA).
- Further, the court ordered that any third-party vendors who interact with the website must also conform to such criteria.
- The court also ordered that Winn-Dixie homepage include a statement concerning its website accessibility policy.
- Winn-Dixie was also required to provide training to all employees who write or develop programs or code, and test its website to identify any incidence of nonconformance every three months for the next three years.
Since the ruling in the Winn-Dixie matter, there has been a summer deluge of cases filed in the Southern District of Florida and plaintiffs’ attorneys appear to be working their way through each and every national corporation to test web site accessibility and then sue for purported deficiencies. While its mostly been the large national corporations that have been the target of these lawsuits or demands, there is no reason to believe that mid-size and smaller corporations are not next on the list. Here in the Southern District of Florida, because of the legal precedent of the Winn-Dixie case (although nonbinding), I expect that web site ADA Title III litigation will follow the physical-plant ADA Title III litigation trend with the plaintiffs’ attorneys working their way down from big to small companies.
Retailers and other businesses (including restaurants, hotels, and other service based businesses) with web sites plus physical locations are advised to develop website accessibility policies for their web access and state those policies on their homepages.
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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases. Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.