Law Office of David Miklas, P.A.
Labor & Employment law - Employers only
Can a blind person sue your business because he can’t navigate your website?
Examples in Florida demonstrating the above pattern:
1. Gomez v. J. Lindeberg USA, LLC, 2016 U.S. Dist. LEXIS 187771 (S.D. Fla. Oct. 17, 2016)
- A South Florida resident who was legally blind intentionally visited the business’s website for the purpose of determining whether barriers to access exist under the ADA. The blind person encountered barriers to access, including the website’s lack of compatibility with his screen reader software.
- The South Florida court found that the blind man stated a claim that the company’s website violated the ADA because the blind person alleged that the website was inaccessible to blind individuals and allowed customers to purchase the company’s clothing online and search for store locations.
- It is important to note that in a four-year period, the blind man’s Miami lawyer, Scott R. Dinin, filed more than 90 cases in South Florida on the blind man’s behalf for violations of the ADA. Ninety percent of those cases challenge the websites of retailers and restaurants because they are not accessible to people with visual impairments, and the lawyer filed substantially similar complaints on the blind man’s behalf in all of them.
- The Miami, Florida lawyer claimed an hourly rate of $400 per hour and the Court granted the blind man’s Florida lawyer thousands of dollars in attorneys’ fees.The Court also made the business pay the blind man’s “costs,” including for an expert report that the Court itself described as “carr[ying] very little (if any) evidentiary weight and has not assisted the Court in any meaningful way.”
How expensive are ADA lawsuits addressing website access?
Because people who sue Florida businesses are unable to collect monetary damages, you might conclude that these lawsuits are very rare and nothing to worry about. However, this is the new “hot” area of employment law. It can be attractive to some Florida lawyers to pursue these types of matters, even if the disabled person is not entitled to any money, because the Florida lawyer can make the company change, while also collecting attorneys’ fees.
Ideally, the reason these lawsuits exist is to obtain an injunction requiring the company to comply with website accessibility guidelines. That cost can be expensive. In the recent case of Gil v. Winn-Dixie Stores, Inc., (June 12, 2017) the evidence showed that it would cost the business $37,000 to fix its website. In addition to that cost, the company had to pay its own lawyers as well as the blind individual’s attorneys’ fees and costs, including expert fees.
Under Title III of the ADA, a customer can sue a Florida business by alleging the following:
(1) she is disabled (within the meaning of the ADA),
(2) the Florida business is a place of public accommodation,
(3) the Florida business denied the customer full and equal enjoyment of its goods, services, facilities, or privileges, and
(4) the denial was based on the customer’s disability.
When is a Florida business website covered by the ADA?
Because Florida federal courts have only addressed these types of lawsuits a handful of times, there is still some uncertainly, but a pattern is emerging:
- Where a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations, courts in Florida probably will find that the website is a service of a public accommodation and is covered by the ADA.
2. Gil v. Winn-Dixie Stores, Inc., 2017 U.S. Dist. LEXIS 90204, (S.D. Fla. June 12, 2017)
- Legally blind resident of Miami had standing to sue for an injunction under the ADA against Winn-Dixie because he tried unsuccessfully to access Winn-Dixie’s website and that he intended to patronize Winn-Dixie stores again if he can access Winn-Dixie’s website.
- The South Florida Court concluded that the company’s website is heavily integrated with the physical store locations and operates as a gateway to the physical store locations.
- Although Winn-Dixie argued that the blind man had not been denied access to the physical store locations as a result of the inaccessibility of the website, the Florida Court rejected this argument, explaining, 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.’"
- The services offered on the business website, such as an 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, were held to be services, privileges, advantages, and accommodations offered by the company’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 demonstrated that the company’s website was inaccessible to visually impaired individuals who must use screen reader software. Therefore, the company was held to have violated the ADA because the inaccessibility of its website has denied a blind individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that the company offers to its sighted customers.
- The blind man who sued was granted an injunction against Winn-Dixie and was awarded attorneys’ fees.
- The South Florida Court cautioned the business that if the Court determines that the business has unreasonably objected to any of the blind man’s attorneys’ fees, “the Court will not hesitate to impose sanctions against [the business] and its attorneys, including, but not limited to, attorneys’ fees and costs.”
- As part of the injunction, the Court ordered the business to adopt and implement a Web Accessibility Policy which ensures that its website conforms with the WCAG 2.0 criteria, and at least once every three months the business must conduct automated accessibility tests of its website.
3. Gomez v. Bang & Olufsen Am., Inc., 2017 U.S. Dist. LEXIS 15457, (S.D. Fla. Feb. 2, 2017)
- The South Florida Court held that a website that is wholly unconnected to a physical location is generally not a place of public accommodation under the ADA.
The Court’s analysis included the following:
- Based on the blind person’s allegations, it appears that he never intended to utilize the company’s physical, retail location; but instead planned to order audio equipment online and have it delivered to his home.
- The blind person’s grievance seems to be that company website does not provide a blind person with the same online-shopping experience as non-disabled persons.
- “However, the ADA does not require places of public accommodations to create full-service websites for disabled persons. In fact, the ADA does not require a place of public accommodation to have a website at all. All 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-motar store. To survive a motion to dismiss, Plaintiff must claim an actual (not hypothetical) impediment to the use of Defendant's retail location.”
- Because the blind person did not alleged that the Florida company’s website impeded his personal use of the company’s retail locations, his ADA claim must be dismissed.
Those Guidelines may help determine whether there may be other website modifications that would improve the accessibility of your Florida business website for disabled individuals.
As an example,
- Maybe your Florida company could refer a disabled customer to a telephone number where the customer could receive information that is otherwise available on the company website.
- Maybe your website’s video content could be provided with close captioning or otherwise in written form.
- Maybe your Florida company could enlarge the font size used on your website.
- Maybe your business can use fonts that are easier to read by assistive technology.
- Maybe your company can adopt a uniform style sheet for its website pages to assist in navigation for users who rely on electronic braille.
The goal should be to provide reasonable accessibility. So, there could be viable alternatives to WCAG 2.0 AA, such as reader devices, electronic braille and connections made to live persons who can assist a vision-impaired person.
What about the deaf or hearing-impaired persons? Fortunately the problems associated with video on your website are less complicated. You can embed transcripts and use closed captioning, which are much easier and less expensive ways to fix the issue rather than implementing WCAG 2.0 AA.
If your Florida company is about to launch a new website, you may want to have your website designers specifically design the website to meet the Level AA requirements of WCAG 2.0, to the extent this is achievable.
If your Florida company already has a website, you may want to collaborate with a website designer experienced in the area of website accessibility. This can be facilitated through use or an experienced Florida labor & employment law firm experienced in Title III litigation.
If your Florida business needs help with complying with the requirements of Title III of the ADA, please email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.
Finally, if you think a business owner in Florida (or a HR Director) would benefit from this article, please share it with one click.
What else can a Florida business do?
Once a business in Florida identifies website accessibility deficiencies and makes changes, the business should consider publishing a website accessibility policy statement on its website. These types of policies often provide for regular accessibility testing as a means of making sure the business website or app remains in compliance with the law.
What more should my Florida company do?
Although the Department of Justice did not provide businesses in Jacksonville, or Tampa or Orlando or Miami with clear guidance, Florida court decisions have put Florida companies on notice that these lawsuits are viable. The lawsuits are even hitting small businesses on the Treasure Coast, in Stuart, Port Saint Lucie and Vero Beach.
A Florida company may want to review the WCAG 2.0 AA Guidelines (available here)
Early settlement of ADA website lawsuits
Florida businesses should realize that, similar to FLSA lawsuits for minimum wage and overtime violations, these type of ADA website lawsuits are expensive to defend and sometimes it just makes good business sense to settle the website lawsuit early, before litigation gets too expensive. For this reason, many of these ADA website lawsuits in Florida are resolved privately through settlements. Settlements are not always cheap, as they may include the payment of the blind individual’s:
- attorneys’ fees,
- costs
- expert costs
- additional money to secure a release of claims and confidentiality
Further, the Florida company should expect to agree to:
- a timeline for redevelopment of the website or app;
- commit to future monitoring and training.
Asked another way, does my business website have to accommodate blind people? Can a blind person sue a Florida company because the business website violates the ADA?
A question that Florida businesses are beginning to deal with is whether Title III of the Americans with Disabilities Act (ADA) requires Florida companies to modify their Internet website so as to provide complete access to visually impaired individuals. Although the ADA has been law since 1990, the first time that a federal court in Florida squarely addressed this issue was in 2002, when it analyzed whether Southwest Airline’s Internet website, was a place of public accommodation as defined by the ADA.
Can a business sit back and wait for the DOJ guidance to be issued?
No. As demonstrated above, Florida courts are not likely to be receptive to the argument that your Florida company doesn’t need to make its websites accessible until after the DOJ issues its regulations.
Because many Florida judges may be reluctant to dismiss website accessibility lawsuits early in the case, these ADA website lawsuits will likely continue into the expensive discovery phase which can force a Florida business to incur substantial costs of defense, even if the Florida company may ultimately prevail on the merits.
Further, the DOJ has taken an aggressive position on enforcement actions involving ADA website access cases.
Therefore, the Law Office of David Miklas advises covered Florida businesses to make sure their websites and apps conform to the accessibility standards, especially where litigation costs exceed the cost of compliance. The business can do this by hiring a consultant to audit the websites and apps to make sure that they comply with the law. Our firm can assist you in finding quality website consultants at reasonable rates.
Compliance with Title III of the ADA usually means a Florida business website and app must be compatible with assistive technologies such as screen reader software, large-print software, and braille output devices – tools that help blind or low-vision individuals navigate digital content.
4. Access Now, Inc. v. Southwest Airlines, Co., 227 F.2d 1312, 1321 (S.D. Fla. 2002)
- dismissing Florida lawsuit because the Plaintiffs suing (a non-profit, access advocacy organization for disabled individuals, and a blind individual) failed to establish a nexus between the company’s website and a physical, concrete place of public accommodation.
5. Kidwell v. Fla. Comm'n on Human Rels., 2017 U.S. Dist. LEXIS 5828 (M.D. Fla. Jan. 17, 2017)
- holding that a website is not a public accommodation under the ADA, and dismissing the plaintiff’s ADA claim in part because the plaintiff could not demonstrate that the website’s inaccessibility prevented his access to a specific, physical, concrete space.
- The disabled veteran who lives in Florida was unable to demonstrate that either Busch Gardens’ or SeaWorld’s online website prevents his access to a specific, physical, concrete space such as a particular airline ticket counter or travel agency.
Where a website is wholly unconnected to a physical location, Florida courts will probably hold that the website is not covered by the ADA.
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