There is an emerging trend toward federal judges siding with plaintiffs in website accessibility cases under the ADA. On June 13, in what is believed to be the first case to go to trial on the issue, a judge in the Southern District of Florida in Gil v. Winn-Dixie Stores, Inc. ruled that the lack of accessibility of supermarket chain Winn-Dixie's website violated a visually impaired man's rights under the Americans with Disabilities Act because 90 percent of the tabs and the search box on Winn-Dixie's website did not work with screen reader software for the visually impaired, and the plaintiff had been on 500-600 other websites that actually work with the software. Two days later, in Gorecki v. Hobby Lobby Stores Inc., a judge in the Central District of California held that a blind plaintiff's website accessibility lawsuit against retailer Hobby Lobby could proceed to discovery. Then, a few months later, in Andrews v. Blick Art Material LLC and Markett v. Five Guys Enterprises LLC, two federal judges in New York denied retailer Blick's and restaurant Five Guy's motions to dismiss lawsuits, alleging that the defendants' inaccessible websites violate the ADA. This article will discuss this emerging trend, analyzing which companies are likely to be subjected to website accessibility standards and providing some guidance on what companies can do to make their websites ADA compliant.

What Companies' Websites Are in Danger of Violating the ADA?

Title III of the ADA, the applicable statute to website accessibility cases, requires “places of public accommodation” to provide people with disabilities “full and equal enjoyment” of their goods and services. Twelve categories of businesses are considered “places of public accommodation” under Title III, including retailers, restaurants, exercise facilities and movie theaters. Therefore, if a business falls into one of these 12 categories, it must provide people with disabilities “full and equal enjoyment” of its goods and services. But what about companies that have no physical location and instead only sell goods or services online? Do they have to comply with the ADA and make their websites accessible to the visually impaired?

Are Companies That Sell Goods or Services Solely Online Required to Make Their Websites Accessible Under the ADA?

In short, it is uncertain whether Texas companies operating solely online will be subjected to website accessibility standards under the ADA. There is a circuit split on this issue, and so far, neither the Fifth Circuit, nor any Texas court, has addressed it.

Courts in the Third, Sixth, Ninth, and Eleventh circuits read the statue narrowly and hold that the term “places of public accommodation” under the ADA includes only places with physical structures. In order for a plaintiff to survive a motion to dismiss on a website accessibility case in these circuits, the plaintiff must establish a nexus between the website and any restriction on the “full and equal enjoyment” of a physical place of public accommodation. Therefore, an inaccessible website of a brick-and-mortar retail store can only run afoul of the ADA if the website's inaccessibility impedes the disabled person's access to a specific, physical space. However, if the business operates solely through the internet and has no customer-facing physical location, it is under no obligation to make its website accessible. For example, in February, the Southern District of Florida held in Gomez v. Bang & Olufsen America, Inc. that an ADA website accessibility claim can only survive a motion to dismiss if the plaintiff establishes some nexus between the website and the physical place of public accommodation.

By contrast, courts in the First, Second and Sevenths circuits hold that “places of public accommodation” need not be physical structures. As long as the business fits into one of the 12 categories described by the ADA, it is a “place of public accommodation” and therefore subject to the ADA. Thus, in these circuits, an inaccessible website can run afoul of the ADA, even if the business operates solely through the internet and has no physical location. For example, the Eastern District of New York in Andrews v. Blick Art Material LLC recently held that Blink, a company who sells products only online, is a “place of public accommodation” under the ADA, and therefore, Blink's motion to dismiss plaintiff's website accessibility allegations was denied.

As the Fifth Circuit has yet to address this issue, it is unclear which approach the Fifth Circuit will take. So, in this circuit, it remains uncertain whether a business that only sells its goods or services online can run afoul of the ADA.

Best Reference for Website ADA Compliance Is Currently the WCAG Guidelines There is no federal organization that mandates particulars of website accessibility, and, because there is believed to be only one federal case to reach the merits on this issue, what a business' website must do to comply with the ADA remains uncertain. However, in the one case to reach the merits on this issue, Gil v. Winn-Dixie Stores, Inc., the Southern District of Florida generally considered the Web Content Accessibility Guidelines (WCAG), guidelines produced by a group of private organizations whose goal is to make websites accessible for all, in determining that Winn-Dixie's website did not provide the plaintiff with “full and equal enjoyment” of its goods and services. Therefore, at this point, the WCAG 2.0 guidelines are the best reference for companies looking to make their websites accessible under the ADA.

While a lot remains uncertain about which companies must make their websites accessible and what companies must do to comply with the ADA, this emerging trend is definitely important to watch as more case law develops on the subject.

Penny Reid is a partner in the commercial litigation and disputes practice group at Sidley Austin LLP in Dallas. She can be reached at [email protected]. Liz Feldman is an associate in the commercial litigation and disputes practice group at Sidley Austin LLP in Dallas. She can be reached at [email protected].