Federal Court Orders Winn-Dixie to Make Its Website Accessible to Visually Impaired Customers
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UPDATED: Aug 23, 2017
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Website owners should be aware that a wave of litigation is challenging commercial websites that are not accessible to customers who have visual impairments. The Americans with Disabilities Act (ADA) requires every place of public accommodation to take reasonable steps to make that place accessible to people with disabilities.
While courts are divided about whether a “place of public accommodation” includes a web-based business, all courts agree that stores with physical locations are places of public accommodation. Courts are increasingly in agreement that when businesses with a physical location use websites as a means of gaining access to the products or services that the business provides (such as placing on online order for products that will be picked up in the store), the ADA requires the website to be accessible to disabled customers.
Winn-Dixie learned that lesson in a lawsuit filed in Florida. A federal judge in Florida ruled that Winn-Dixie failed to make its website accessible to the visually impaired, and that its failure to do so violated the ADA.
Juan Carlos Gil is a customer of Winn-Dixie stores, a chain of supermarkets, some of which have pharmacies. Gil lives in Miami. He is legally blind and has cerebral palsy. He can operate a computer but cannot read the screen. Screen reader software (primarily JAWS) allows him to access information on his computer.
JAWS is an expensive program. An alternative, NVDA, was created by a consortium of individuals who are visually impaired. Gil does not use it often because its functions are rudimentary compared to JAWS. Gil does not like Windows’ Narrator screen access program because it does not work well. He likes the Voiceover program, but it only works with his Mac Book Pro, not with his Dell laptop running Windows.
Gil has been a long-time customer of Winn-Dixie because his income is limited and the store’s prices are lower than many other chains. He required the assistance of others to complete his shopping at Winn-Dixie.
In about 2015, Gil learned that Winn-Dixie had a website. He also heard advertising suggesting that he could access coupons on the website and refill prescriptions online. While Winn-Dixie does not deliver products ordered on the website, it does allow prescription refills to be ordered for in-store pickup. It also has a “store locator” to help customers find stores and it allows coupon discounts on its website to be saved to the customer’s rewards card, so that the discounts are credited at the time of purchase.
Gil was excited to use the website because it allowed him to shop for groceries and to refill prescriptions independently. When he began using the website, however, he discovered that 90% of the site did not work with his screen reader software. Unlike hundreds of other store websites Gil has accessed, he could not navigate through the Winn-Dixie website using his screen reader programs.
Gil also testified that most commercial websites have an accessibility notice advising customers that the website has been designed to be accessible to visually impaired customers. The Winn-Dixie website had no such notice.
Other supermarket websites allow Gil to create and print a shopping list. He can then take the list to the store, hand it to an employee, and wait for the employee to gather the items he needs. If the Winn-Dixie website offered the same advantage for visually impaired customers, he would do the same at Winn-Dixie.
The employee in charge of IT for Winn-Dixie’s parent company testified that the company is working on an ADA compliant website, that it is considering but has not adopted the Web Content Accessibility Guidelines (WCAG) developed by a private consortium of organizations, and that the present website has not been tested with any screen readers.
The website was initiated in 2015 at a cost of $2 million. It was modified in 2017 to make it work with Winn-Dixie’s rewards program. The modification cost about $7 million. Winn-Dixie gave no thought to making the site accessible to the visually impaired when it was initiated or at the time of its modification. The company has budgeted $250,000 to make the site accessible but is still studying the issue.
An expert witness testified that WCAG is the international industry standard for making websites accessible to the visually impaired. Thousands of businesses in e-commerce use WCAG.
The expert analyzed the Winn-Dixie website. He determined that most of the accessibility problems could be corrected by modifying a few source codes to make the site compliant with WCAG. He testified that Winn-Dixie could complete a full audit of the site in about three weeks, and could probably fix its problems at a cost of about $37,000.
While Winn-Dixie’s IT witness testified that Winn-Dixie would also have to assure compliance by third party vendors that are accessed through the Winn-Dixie site, the expert witness noted that many of those third parties (such as Google, which makes Google Maps available so customers can locate stores) already comply with WCAG standards. The expert noted that it is rarely difficult to assure that third parties cooperate with making websites accessible to the visually impaired. He also testified that every browser commonly used by consumers complies with WCAG, which alleviated Winn-Dixie’s stated concern about finding a standard that would work with all browsers.
There was no dispute that Gil’s visual impairment constituted a disability under the ADA. There was also no dispute that Winn-Dixie is a place of public accommodation and therefore subject to the ADA’s requirements. The question before the court was whether the website provided “services, privileges, advantages, and accommodations” offered by Winn-Dixie’s physical locations. If so, the website was required to be accessible to the visually impaired.
The court decided that Winn-Dixie’s website functioned as a gateway to its physical stores and that its website was heavily integrated into its business as a whole. The website helped customers find stores, order prescription refills, and obtain coupon discounts for use with its reward program. Without deciding whether the website, standing alone, would qualify as a place of public accommodation, the court ruled that the website was a means of access to goods, services, privileges, and advantages offered by the physical stores, and that the website is therefore covered by the ADA.
The district court decided that the cost of making Winn-Dixie’s website compatible with WCAG, whether $37,000 or $250,000, was trivial in comparison to the money Winn-Dixie spent to initiate and upgrade the website. The district court was also unimpressed with the IT employee’s testimony about the difficulty of making the site compatible with every browser and every screen reader. The most common browsers and screen readers are compatible with WCAG. If Winn-Dixie makes its website compliant with WCAG, it will have taken the reasonable steps required by the ADA.
Because its website is inaccessible to customers with visual impairments, the court decided that Winn-Dixie denies those customers the full and equal enjoyment of services, privileges, and advantages provided to nondisabled customers. Winn-Dixie therefore violated the ADA.
No damages are available under the ADA for accessibility violations, but the court is authorized to grant injunctive relief. The court entered an injunction that requires Winn-Dixie to stop violating the ADA. Specifically, Winn-Dixie must conform its website to WCAG guidelines, publicize the accessibility of its website to disabled customers, require its third-party vendors to make their linked websites comply with WCAG guidelines, train its IT staff to follow WCAG guidelines when adding to or modifying the website, and audit the website every three months to make sure that it is fully accessible to visually disabled customers.
The court also ordered Winn-Dixie to pay Gil’s attorney’s fees in an amount to be determined by the parties. The court also ordered Gil and Winn-Dixie to try to agree upon dates each component of the injunctive relief will take effect. The court will resolve any disputes about attorney’s fees and injunctive relief if the parties are unable to reach an agreement.
Any business with a physical location that offers products for sale through a website, or that offers advantages to customers who use the website (such as the ability to find the physical location of the business), is probably required to make the website accessible to visually impaired customers. Following the current WCAG standards may be the best way to do that.
Businesses that operate stand-alone websites may or may not be covered by the ADA’s accessibility requirements. That issue may be resolved by Congress or the Supreme Court at some point in the future. Until then, commercial website owners should obtain legal advice concerning their specific web-based business. Since a website can be accessed anywhere in the country, however, including places where courts might be inclined to apply the ADA to all commercial websites, the safest practice (and the one that is friendliest to disabled website users) is to make every commercial website complaint with WCAG standards.