The major news outlets seem to have overlooked the most interesting aspect (to me) of Amazon’s acquisition of Whole Foods; that is, Amazon’s leap into the world of serial ADA filers and controversy over internet accessibility. Amazon has experimented with physical stores, but soon it will have hundreds of them in the U.S., and every one of them has some kind of ADA accessibility issue. That isn’t an accusation, but an assumption based on the highly technical requirements in the 2010 ADA Standards and the proven inability of even the most sophisticated organizations to control the hundreds or thousands of people whose jobs are not primarily related to accessibility to do what is required. Somebody’s going to stack boxes in a hallway, block a checkout counter, take too long to repair a vandalized accessible parking sign, or fail to notice a 10% slope where 8.3% is the maximum. Whole Foods has already been sued many times based on accessibility failures in its stores. More
Yesterday, on June 13, Judge Robert Scola of the Southern District of Florida issued his opinion on website accessibility in Gil v. Winn Dixie Stores, Inc. Case No. 1:16-cv-23020 (SD Fla. June 13, 2017) He conducted a two day trial, but the outcome was inevitable after his earlier decision denying a motion to dismiss. In that decision Judge Scola adopted, in essence, the reasoning of Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006). Target held that if a website had a sufficient nexus with a physical place of business then it was covered by the ADA as a service of that public accommodation. This sidestepped the more theoretical question of whether a stand alone website is a public accommodation. It appears to have been undisputed that the Winn-Dixie website offered services related to its brick and mortar stores, so the trial in which evidence of that fact was put in the record was really just a formality. More
On April 21, 2017 Judge Schwab of the Western District of Pennsylvania surprised no one by finding that the ADA applies to web sites. Gniewkowski v. Lettuce Entertain You Enterprises, Inc., Case No. 2:16-cv-01898 (W.D. Pa. April 21, 2017). Judge Schwab has presided over dozens of ADA cases, and his orders in those cases make it plain that he has an expansive view of the purposes and reach of the ADA.
What is surprising about the decision is Judge Schwab’s reasoning, which does not follow many earlier cases holding that websites may be covered by the ADA because they are a service of a brick and mortar store, act as a “gateway” to the brick and mortar store or otherwise have some relationship to a physical place of public accommodation. Instead Judge Schwab observes that the defendants’ physical locations are undoubtedly places of public accommodation and then finds that “the alleged discrimination has taken place on property that AmeriServ owns, operates and controls – the AmeriServ website.” Missing is the connection between the website and the physical premises present in other cases. It appears that Judge Schwab would hold that if any business owns a place of public accommodation then any website it also owns is subject to the ADA, regardless of the relationship of that website to a physical premises.
The case was decided on a Motion to Dismiss, and although district court decisions pro and con continue to drift in, there no definitive case. There is, however, a clear imperative to make websites accessible to avoid the expense of litigation.
Thanks to Michele Landis of Accessible 360, for sending me information about this decision.
*Please note that our work with different web accessibility consultants does not represent an endorsement of any of them. Decisions on how to best approach accessibility should be made by any business after consulting with both counsel and a variety of consulting firms.
I’m writing this brief blog just to let you know that we have some additional decisions on the ADA / Internet issue. Unfortunately they don’t tell us much. In Gil v Winn Dixie Stores, Inc., Case No. 16-23020 (SD Fla. March 15, 2017) Judge Scola adopted the reasoning in Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946, 949 (N.D. Cal. 2006), the earliest and most influential of the ADA / Internet decisions. In Gomez v. J. Lindbergh USA, LLC, Case No. 16-22966 (SD Fla. Oct. 18, 2016) Judge Williams adopted the same standard in finding that a complaint was sufficient to support a default judgment.
Those involved in ADA / internet lawsuits will also be interested in Hindel v. Husted, 2017 WL 432839, at *7 (S.D. Ohio Feb. 1, 2017). This is a Title II case, and for Title II entities there is no doubt that an accessible website is required. What stands out is the time the court gave the defendant to make its website accessible; just seven months. DOJ and other settlements in this area typically require compliance in 18 to 24 months. The explanation for the short time line probably lies in the procedural history of the case, but it is a reminder that courts unfamiliar with the complexity of WCAG 2.0 compliance may not understand why accessibility can take a good deal of time.
Finally, a non-internet case from Utah ties into the ongoing discussion of internet issues because it concerns a program that was not conducted from a physical space. J.H. by and through Holman v. Just for Kids, Inc., 2017 WL 1194213 (D. Utah Mar. 30, 2017) concerns a program for disabled adults that is conducted primarily from vans that take the participants to various activities. The plaintiff claimed her exclusion from the program violated the ADA. The Court, after a careful analysis of cases concerning whether a “public accommodation” must be a physical space sided with those courts so holding. Because the vans were not public accommodations the program itself was not a public accommodation subject to Title III.
The case is interesting with respect to issues concerning internet access because of the Court’s discussion of the physical places the program was related to. Notably, the Court was not impressed by the fact that the program had a physical headquarters, finding there was no relevant nexus between the physical headquarters and the program itself.
For those who are counting, the trend is toward adopting the rule in Nat’l Fed’n of the Blind v. Target Corp., which found that web sites could be considered services of a brick and mortar store and would therefore be required to be accessible in the same way other services of such stores had to be accessible. With most of the decisions made at the pleading stage what we lack is a clear description of how closely a web site must be related to a physical store in order to be considered a service. One can imagine, for example, a retailer maintaining two websites, one of which provides information about store locations, hours, sales and the like, while another serves strictly as an online retailer like Amazon in order to avoid any requirement of accessibility. Would this change if the online offerings were in the same website as the store information? After all, the online sales are not a service of any store. The answers to questions like these remain unclear.
In the meantime, despite some favorable recent rulings, the safest course for any business is to begin work on website accessibility now in the hope that money can be devoted to better serving disabled customers instead of paying off the lawyers in the ADA litigation industry.
ADA defendants just won two significant victories concerning internet accessibility. In a March 20, 2017 decision in Robles v. Dominos Pizza LLC, Case No. 2:16-cv-06599, (C.D. Cal.) Judge Otero dismissed a claim concerning the accessibility of Dominos’ web site and mobile app based on a due process objection. The Court found that DOJ’s failure to issue regulations implicated the holding in United States v. AMC Entertainment, 549 F. 3d 760 (9th Cir. 2008) that a failure to give fair notice of what was required violated due process. In Gomez v. Bang & Olufsen America, Inc., Case No. 1:16-cv-23801 (S.D. Fla) Judge Lenard adopted a rule derived from earlier cases in the 11th and 9th Circuits that that a claim under the ADA exists if “a website’s inaccessibility impedes the plaintiff’s “access to a specific, physical, concrete space.” He then dismissed the complaint because the plaintiff failed to allege with sufficient specificity that his access to the brick and mortar stores had been impeded. The holding seems more restrictive than the case on which he relies, National Association of the Blind v. Target Corp., 452 F.Supp.2d 946, 956 (N.D. Cal. 2006), but the differences are not explored in the opinion.
A few weeks earlier one of the leading plaintiffs’ firms in the field of internet accessibility entered into an agreement not to sue banks in Texas as part of a settlement of a barratry case brought by a banking trade association, another victory that shows one way to deal with serial or “drive-by” lawsuits. The Texas legislature is also considering an anti-troll law that would make bad faith ADA demands a violation of the law. If such a law survived a preemption challenge it might also help eliminate such lawsuits.
Hooray! Or maybe not. The two district court decisions only have persuasive value with respect to other district courts, and Judge Lenard’s decision turns on a defect in pleading that could be cured by amendment. The Texas bank settlement is just that; a settlement, and it was based on procedural rather than substantive issues. Judge Otero’s decision will certainly act as a roadmap for those who want to mount a vigorous defense to the next ADA internet claim, but it rests on 9th Circuit case law that might not be accepted in other circuits and its reasoning has already been rejected in other districts. At the end of the day these decisions represent nothing but the ordinary ebb and flow of ADA decisions in which defendants win some and lose some and then usually settle.
The state of law, in the meantime, remains mixed. In the 9th Circuit and 11th Circuit a pure internet business is not covered by the ADA. In the 9th and 11th Circuits a business with a physical presence and a web presence may be subject to the auxiliary aids and services requirement of the ADA, but the needed connection between the website and the physical store remains largely undefined. Finally, in some courts and circuits it appears the ADA applies to every website, regardless of its relationship to physical store. Because internet business is at least national most potential defendants will find their liability depends on where they are sued.
Continuing to move toward website accessibility is the most prudent strategy for any business that can afford it. Smaller enterprises that find the cost prohibitive may choose for strategic reasons to wait until the software tools improve and costs go down, but even smaller businesses should take the handful of relatively cheap steps available to improve accessibility, including the provision of a toll-free customer assistance number like that provided by Dominos Pizza. Recent victories are nice, but until the Supreme Court rules on the ADA and internet the state of the law will remain confused, and litigation avoidance will be the best strategy.