You may have read about it in the New York Post recently but retailers and brick-and-mortar retail franchise companies are getting sued for violations of the Americans With Disabilities Act (ADA) related to their websites. The ADA website claims are separate from other traditional ADA lawsuits alleging violations of physical accessibility to a store or restaurant, and recent federal case law in Florida has emboldened ADA plaintiffs’ firms to file ADA website lawsuits at a rapid pace.
Who are the plaintiffs in these ADA website lawsuits? Plaintiffs suing under the ADA for website violations are generally visually impaired individuals. Visual impairment is a qualified disability under the ADA. The plaintiff will generally allege that he or she is unable to read computer materials and/or access website information due to his or her visual impairment. The robo-plaintiffs filing these claims may allege to be “testers” on behalf of others with a similar disability and not necessarily an actual or regular customer of the business. A plaintiff’s allegation that he or she intends to visit the retail store or restaurant in the near future is sufficient in the eyes of the court to establish standing to seek injunctive relief under the ADA for website claims.
What is the applicable ADA law? Title III of the ADA prohibits the owner of a place of public accommodation from discriminating “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation….” 42 U.S.C. § 12182(a). The ADA defines a “public accommodation” as a private entity whose operations affect commerce, and which falls within one of twelve enumerated categories. 42 U.S.C. § 12181(7). 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….” 42 U.S.C. § 12182(a).
Why should franchisors and retailers be concerned? Title III of the ADA covers both “tangible, physical barriers that prevent a disabled person from accessing a public accommodation,” as well as “intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures that restrict a disabled person’s ability to enjoy the defendant entity’s goods, services and privileges….” See Gil v. Winn-Dixie Stores, Inc., 2017 WL 2547242 (S.D. Fla. June 12, 2017) (citation omitted). Where a website is heavily integrated with physical store locations and operates as a “gateway to the physical store locations,” courts in Florida have recently found that the website is a service of a public accommodation and is covered by the ADA. See id.
This interpretation of the ADA led the court in the Gil v. Winn-Dixie case to conclude as follows:
The services offered on Winn–Dixie’s website, such as the online pharmacy management system, the ability to access digital coupons that link automatically to a customer’s rewards card, and the ability to find store locations, are undoubtedly services, privileges, advantages, and accommodations offered by Winn–Dixie’s physical store locations. These services, privileges, advantages, and accommodations are especially important for visually impaired individuals since it is difficult, if not impossible, for such individuals to use paper coupons found in newspapers or in the grocery stores, to locate the physical stores by other means, and to physically go to a pharmacy location in order to fill prescriptions.
The factual findings demonstrate that Winn–Dixie’s website is inaccessible to visually impaired individuals who must use screen reader software. Therefore, Winn–Dixie has violated the ADA because the inaccessibility of its website has denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that Winn–Dixie offers to its sighted customers.
In other words, if you, as a brick-and-mortar franchise company or retailer, maintain a website that does not meet the ADA standards for visually impaired customers, then you could be targeted by the ADA plaintiffs’ law firms and potentially held liable for violations of the ADA.
What are the remedies available to ADA plaintiffs? Under the ADA, a prevailing plaintiff is not entitled to damages, but he or she may recover reasonable attorneys’ fees. 42 U.S.C. §§ 12188(a), 12205, 2000a–3(b). Injunctive relief is available under the ADA if the discrimination includes “a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities … where such removal is readily achievable.” 42 U.S.C. §§ 12188(a)(2), 12182(b)(2)(A)(iv). Additionally, the ADA requires without exception that any policies, practices, or procedures of a public accommodation be reasonably modified for disabled individuals as necessary to afford access unless doing so would fundamentally alter what is offered. At the end of the day, the violating business may be ordered to pay attorney’s fees, to spend whatever money is necessary to get the website into ADA compliance, and other administrative costs.
What should you do now? There are ADA website “testers” out there right now scouring the web looking for targets. These claims are being filed mainly in Florida, New York and California, where the courts have generally been favorable to plaintiffs and consumers. There is nothing currently on the legislative agenda until 2018 that might prevent these ADA website lawsuits in the future. If you are a brick-and-mortar retail franchisor or retailer that wishes to be proactive, there are ADA website vendors which, for a fee, will provide you with a complete analysis of how to get your website, customer interface (e.g., tablets, menus, hand-held devices, etc.) compliant with the ADA rules. You can also check with your insurance broker to see if you have an insurance policy covers these claims and, if not, request one. If you prefer to wait for an ADA website lawsuit, then, upon being served with the federal complaint, you should reach out to a franchise or business lawyer for advice and counsel on how to best resolve the case.
Wasch Raines’ franchise and business lawyers regularly provide litigation services and advice on issues discussed in this article to franchisors, franchisees, businesses, and clients in all industries. If you have any additional questions or comments about ADA website claims, please contact us at info@waschraines.com or call (561) 693-3234.
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