Many of our clients have recently inquired about the Americans with Disabilities Act and websites. By now, everyone should be familiar with the ADA and, at least in a general sense, its purpose: if you are a place of public accommodation, you need to be accessible to and cannot discriminate against those with disabilities. One of the most well-known accommodations is the wheelchair ramp.
The ADA lists places that are deemed “public accommodations.” Essentially, if you are open to the public, you are likely included on that list. Among the places listed are, for example, grocery stores. But what about the grocery store’s website? Is that included in the definition? It is easy to see how those with a disability will need a wheelchair ramp to access the physical store. What is easily missed, however, is that now with many transactions being initiated online, those will disabilities may have difficulty accessing websites—much like they did with physical locations before the wheelchair ramp was required.
As it relates to websites, the law is not well-settled across the nation, and there is no consistent answer one way or the other as to whether a “public accommodation” needs to be an actual physical space or whether a website can qualify. Some federal jurisdictions have taken the position that websites themselves can be places of “public accommodation” and should be ADA compliant. The federal courts in Florida have not gone so far.
In a June 2017 case, this issue was addressed. There, a visually impaired patron brought suit against Winn-Dixie because of its website. Winn-Dixie conceded that its website was not ADA compliant, but argued that since its physical locations were, it had complied with the ADA. Prior to making its determination, the court undertook an analysis of Winn-Dixie’s website and focused on three features that the disabled patron was precluded from accessing: its online pharmacy management tool; its digital coupons that link to a customer’s reward card; and its store locator tool.
The federal trial court ruled that Winn-Dixie was in violation of the ADA. Some key language that can be distilled from the opinion is that where your website is “heavily integrated” with your physical location, and serves as a “gateway” to your physical location, your website should be ADA compliant. The court also made clear that even though Winn-Dixie’s physical location may have been fully accessible, “the ADA does not merely require physical access to a place of public accommodation. Rather, the ADA requires that disabled individuals be provided ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .’” Had Winn-Dixie’s website been “wholly unconnected” to its physical location such that there was no “nexus” between its website and the physical store, the ruling likely would have been different. The case is currently on appeal.
Because determining whether your company’s website has a sufficient nexus to its physical location is not clear-cut, another example may be helpful.
In another decision, a federal trial court located in Florida dismissed a complaint filed by a blind patron. There, the company sold high-end electronic equipment. Through its website, users could access a store locator tool and also allowed them to browse and search for merchandise, research merchandise and installation services, and make private appointments with sales representatives. The website was not ADA compliant. The disabled patron, who was precluded from accessing these services, made two decisive allegations: (1) that travelling out of the home was frightening for him as a blind individual; and (2) that buying and having the high-end equipment delivered to his home was an important accommodation. Based on these allegations, the court ruled that the patron did not allege an ADA violation. The reasoning? His allegations showed that he never intended to actually access the physical store. The Court opined: “[a]ll the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mo[r]tar store.”
The overall goal of the ADA is to remove physical and intangible barriers encountered by those with disabilities. As technology advances, it is likely that the protections afforded under the ADA will as well. But, for now, until the law catches up with technology, we will need to evaluate each website on a case-by-case basis to see if the ADA applies.
On the Practical Side . . .
First, although the law may not require your specific website to be ADA compliant, you should still consider your audience. Obviously, making your website ADA compliant will broaden the scope of your audience to include a class of individuals that you are otherwise excluding. This could also broaden your customer base.
Second, many ADA compliance issues for websites can be remedied by altering the source code. This means that you can likely have an ADA compliant website without drastically changing its current look. For example, making your website compatible with devices that disabled individuals use, such as screen readers, does not mean that your website with “speak” to every user. Rather, it means that when visually impaired users access your website with their own screen readers, they can use a command that will tell their device to read the text on the screen.
Third, there are reports that suggest that an ADA compliant website is more user-friendly for non-disabled individuals as well, thus making your website experience more enjoyable for everyone.
Last, if you are interested in updating your website, various courts have referred to the WCAG 2.0 guidelines as the “industry standard.” You should contact your web-developer for more information about implementing these guidelines.
Cristina E. Groschel, Michael St. Jacques, and Bruce E. Loren of Loren & Kean Law are based in Palm Beach Gardens and Ft. Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, employment law, and internet and marketing law. Ms. Groschel focuses her practice on labor and employment law, representing the interests of employers and business owners. She has represented businesses in a wide range of disputes, including discrimination claims. Ms. Groschel is also certified as a Professional in Human Resources (PHR). Among other areas, Mr. St. Jacques focuses on Internet and Marketing Law and the issues that surround those unique practices. Ms. Groschel, Mr. St. Jacques, and Mr. Loren can be reached firstname.lastname@example.org, email@example.com, firstname.lastname@example.org 561-615-5701.