Website Linked to Physical Store Must Be Accessible to Visually Impaired Customers

On June 12, 2017, the U.S. District Court for the Southern District of Florida decided the case of Gil v. Winn-Dixie Stores, Inc. in favor of Plaintiff; awarded attorney fees and entered an injunction against the grocery chain.  The court ruled that a Winn-Dixie website that was tightly linked to its physical store locations must be accessible to visually impaired customers.

Plaintiff is visually impaired customer of Winn-Dixie.  He alleged that the Company’s website not ADA (Americans with Disabilities Act) compliant for the visually impaired.  The parties agreed Gil’s disability was qualified under the ADA and that the stores themselves are public accommodations under the ADA.  They disagreed as to:  1) whether the website was subject to the ADA as either a “service of public accommodation” or a “public accommodation in and of itself”; 2) whether Gil was “denied the full and equal enjoyment of Winn-Dixie’s goods, services, facilities, privileges, advantages, or accommodations because of his disability”; and 3) whether the requested changes to the website are “reasonable and readily achievable.”

Because of his disability, Plaintiff uses screen reader software and has successfully used “500-600” other websites with the software.  He was unable to use the software with most (90%) of the tabs/screens/functions of the Winn-Dixie website.  The website allows consumers to link a coupon to their customer loyalty card, locate a nearby grocery store or store with a pharmacy, and refill prescriptions at a store pharmacy, among others.

The Defendant was aware the website could be made accessible and set aside $250 thousand to accomplish this task.  It also spent $7 million to update its website to offer an expanded, multi-company customer reward system, but did not address disability access.

An expert witness for the Plaintiff testified that, based on his analysis, the website could be modified to be accessible with minor changes to the underlying software code.  He also recommended a full accessibility audit of the website, an effort that would take “about three weeks.”  Finally, he estimated the full cost for fixing the website and conducting the audit would cost Defendant $37,000.

The court surveyed case law, noting that the courts are split as to whether “a place of public accommodation” is limited to a physical space.  However, courts have generally agreed that, where a website functions “operates as a gateway to a physical store,” the website is a “service of a public accommodation” that is covered by the ADA.  And since the Winn-Dixie website is inaccessible to customers who are visually impaired, an ADA violation occurred.  The court entered an injunction and directed Plaintiff to file a request for attorney fees.

Commentary

Courts will continue to grapple with the issue of whether a company’s website alone is a “place of public accommodation” under the ADA.  That issue is beyond the scope of this discussion.  However, the logic behind the Gil case is strong.  Many retailer and service providers with “bricks and mortar” locations also have websites and use their websites as a “gateway” to their physical locations as do the Winn-Dixie stores.  If so, there is a strong argument those websites must be ADA compliant.

Any retailer or service provider that has a physical location and a website that is functionally linked to that/those location(s) should consider hiring a disability access specialist to review the website for ADA compliance unless the company already knows its website is compliant.  Marashlian & Donahue, PLCC has established relationships with several leading ADA consulting firms.  We also have an approach that can generally make a review/audit subject to attorney-client privilege against disclosure.  If you have questions about this advisory or would like to discuss ADA compliance please do not hesitate to contact Robert H Jackson, at (703) 714-1316, or rhj@commlawgroup.com.

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