Recent trends indicate that ’tis always the season for web accessibility litigation, so with the new year, you should take a new look at your website. Businesses around the country, and especially in Florida, are discovering that their websites are within the crosshairs of visually impaired plaintiffs who, on contacting a business for assistance, may be told to visit a website that might not be accessible.
The Department of Justice first promised to issue regulations on making websites compliant with the Americans with Disabilities Act back in 2010, and eventually projected that they will be issued this year. Meanwhile, private lawsuits are proceeding. Last year, following what may be the first trial of its kind, a Florida federal court entered a three-year injunction against a grocery store chain mandating that it make its website fully and equally accessible to the visually impaired. The case was one of more than 70 filed by plaintiff Juan Carlos Gil, who, in this suit, alleged that he is a visually impaired individual who could not access pharmacy coupons that were available to customers only on the web.
Courts are split on whether the ADA limits “places of public accommodation” to physical locations, and for that reason, Mr. Gil’s case against the grocery chain is currently on appeal before the Eleventh Circuit Court of Appeals. The trial court in this case said that it did not need to decide whether a website was a place of public accommodation; it is enough that a plaintiff show he was denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation. The trial court noted that the grocery store’s website was heavily integrated with and operated as a gateway to the company’s physical locations, and that provided a sufficient nexus between the physical location of the business and its website to state a claim under the ADA. Other courts are following suit, which means that establishing this “nexus” is the key to stating an ADA claim concerning a website.
How have plaintiffs created this “nexus” and brought about the current season of website accessibility litigation? Mr. Gil, in his lawsuits against businesses over their websites, often alleges that he has contacted businesses to seek information regarding the services and amenities offered, but the customer service personnel refer him to the business’ website to find the answers. Upon visiting the website, Mr. Gil alleges that he is unable to access the information there. Plaintiffs such as Mr. Gil argue that the referral to the website provides the necessary “nexus” between the physical location of the business and the website. Plaintiffs argue that if the website and its features are inaccessible to visually impaired (or hearing impaired) individuals, the business has not provided effective means of communication for persons with disabilities.
So, how do you stay out of the cross hairs? If your business routinely refers callers to the website for information, get ahead of the ADA litigation tidal wave by ensuring that your website is accessible to persons with disabilities. If you’re in doubt about whether any features of your website currently are accessible, perform a preliminary analysis of your website using the WAVE Web Accessibility Tool to identify potential issues. Then, consult with web accessibility experts who can assist you by providing recommended methods for increasing the accessibility of your website. Establish methods for persons with disabilities to contact your business regarding inaccessible elements, and always prioritize accessibility fixes above others. Consult with counsel today to develop additional strategies for weathering the seasons of web accessibility litigation.