Lawsuits addressing ADA compliant websites spiked in 2018
Two cases seem to spark this increase in lawsuits surrounding ADA compliant websites. The first website accessibility case that has gone to trial is Gil v. Winn-Dixie Stores, Inc. [June 12, 2017]. Gil, a Winn-Dixie customer, alleged that the company’s website was inaccessible to the visually impaired. In this case, the court imposed an injunction against the website owner and ordered Winn- Dixie to comply with the Web Content Accessibility Guidelines (WCAG) Version 2.0. WCAG is a series of web accessibility guidelines created to make the web more accessible for individuals with disabilities.
In Robles v. Domino’s Pizza, LLC [January 15, 2019] a blind customer brought action alleging the operator’s website and mobile application for ordering pizza was not fully accessible to him in violation of the ADA and California’s Unruh Civil Rights Act. The Ninth Circuit Court of Appeals recently decided that company website may violate the ADA if they are inaccessible to consumers with visual, auditory, or other disabilities. Domino’s argued that it did not have fair notice of a legal obligation to comply with the private but commonly used WCAG; however, the Court rejected the notion that liability was based improperly on the WCAG. It further stated that the ADA itself and existing guidance already articulate “comprehensive standards” that require covered websites to provide “full and equal” access to disabled consumers and ensure “effective communication” through “appropriate auxiliary aids and services.”
Courts are split as to whether the website can be a public accommodation subject to the ADA accessibility requirements or whether there needs to be a connection between the website and a physical, brick and mortar location. However, there have been many lawsuits crossing over industries, from education, hotels and resorts, restaurants, associations, online stores, etc. addressing this very issue.
Even though there was a request from Congress in December 2017 for further guidance, the Department of Justice (DOJ) formally withdrew its proposed rulemaking of eight years regarding accessibility of web information. The Ninth Circuit also rejected the primary jurisdiction defense that website accessibility requirements should be determined by the DOJ.
The Ninth Circuit didn’t go as far as saying that failure to comply with the WCAG per se violates the ADA. But they did hold that “the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.”
The Robles case makes it clear the importance of following both federal and state website accessibility requirements. While many state laws may mirror the ADA, the California law differs in various respects. Additionally, companies may want to undertake regular WCAG compliance audits to remain accessible as content is added and technology and standard evolve.
WCAG 2.1 version provides additional criteria for mobile accessibility, individuals with low vision, and individuals with cognitive and learning disabilities.
WAVE (Web Accessibility Evaluation Tool) provides an easy-to-use resource for businesses to help identify possible visual accessibility errors that should be examined further.