Website Title III ADA Violation Impacts Employers - American Society of Employers - Anthony Kaylin

Website Title III ADA Violation Impacts Employers

Although seemingly far-fetched, a lawsuit which hit grocer Winn-Dixie concerning accessibility to its website should make HR take notice.  A federal trial court in Florida ruled that Winn-Dixie violated Title III of the ADA by having a website that was not useable by plaintiff Juan Carlos Gil to download coupons, order prescriptions, and find store locations.  Mr. Gil is blind and uses screen reader software to access websites.  The judge ordered injunctive relief, including a three-year injunction, and awarded Mr. Gil his attorneys’ fees and costs.

So how does a Title III case impact Title I compliance?  Title III of the ADA covers public accommodations (i.e., private entities that own, operate, lease, or lease to places of public accommodation), commercial facilities, and private entities that offer certain examinations and courses related to educational and occupational certification.  Commercial facilities are nonresidential facilities, including office buildings, factories, and warehouses whose operations affect commerce. Title III requires in part that commercial facilities make reasonable modifications in policies, practices, and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration would result in the nature of the goods and services provided.

Title I, on the other hand, prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments, employment agencies and labor organizations.

What’s the connection between the two? The website. 

First, in this case, the court dismissed the claim that the $250,000 expected costs to update the website is an undue burden.   The court said this cost “pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for the “Plenti program.”  In other words, unless the cost is unduly burdensome, cost is no defense to compliance.

Second, the Court set a standard which must be complied with for compliance.  The Court established that the Web Content Accessibility Guidelines (WCAG) 2.0 as the accessibility standard that Winn-Dixie must meet in making its website accessible. The Department of Justice and other cases which were settled before trial via consent decrees used WCAG 2.0 as its standard.  However, WCAG 2.0 has not officially been adopted as the legal standard, but is simply a set of guidelines developed by a private group of accessibility experts in 2008. Some examples would include close captioning for pictures and videos on websites, making Web pages appear and operate in predictable ways, and providing ways to help users navigate, find content, and determine where they are in the website.

This case was the first to go to trial to litigate Title III public accommodation violation by having an inaccessible website.  For retailers and the like, it means that this case, although simply a Federal District Court case, could open the floodgates to website accommodation litigation, like in the past, when businesses were randomly targeted for entryway access Title III violations.  It establishes the cottage industry for plaintiff lawyers.

Under Title I, there has been no career page accessibility litigation as of yet, but now the window is open.  Federal contractors, by regulation, must have specific language on the website to assist those who need an accommodation to access the career page.  One recent case under Title III may support this approach for website accommodation as a final resolution.   In the case of Robles v. Dominos Pizza LLC, CV 16-06599 SJO (U.S. Central District Court of California, March 20, 2017), the judge dismissed the case of a blind individual who could not order pizza online because the judge agreed with Dominos had met its obligations under the law by providing telephonic access. 

Until federal appeals court or U.S. Supreme Court rules definitively establish how liability is determined in a Title I career page situation, HR needs to be aware of the risk of these lawsuits.  At minimum, HR needs to place specific language on its career page, which states:

Accessibility: If you need an accommodation to access the career portal, please contact this number xxx.xxx.xxxx.

Although this approach is the federal contractor approach, it should work as a potential shield for all employers.   Furthermore, HR should review the Job Accommodation Network (JAN)’s website accessibility page for tips on font, colors, and close captioning.  Finally, anything with pictures should have text-only alternatives (ALT-tags) and audio and video should contain captions.  As costs will likely not be a defense for an employer if these lawsuits arise, these actions should be considered and implemented if possible.


Source:  Seyfarth Shaw 6/14/17, 3/24/17

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