Seyfarth Synopsis: In amicus brief to the U.S. Supreme Court, the Justice Department agreed with the Fifth Circuit and defendant Coca-Cola that a vending machine is not a place of public accommodation and that public accommodations can comply with the ADA by providing assistance to customers in lieu of having accessible self-service equipment.

The Supreme Court recently asked the U.S. Department of Justice (DOJ) to weigh in on whether vending machines are places of public accommodation covered by Title III of the ADA.  The Court’s request related to a pending a Petition for Certiorari filed by a blind plaintiff who unsuccessfully sued Coca-Cola for allegedly owning and/or operating vending machines that are not independently usable by the blind.  Both the District Court and the Fifth Circuit had concluded that such machines are not public accommodations under the ADA.

The DOJ’s amicus brief unequivocally stated its position that vending machines are not public accommodations.  The DOJ advanced a number of arguments in support of its position that a vending machine does not fall within any of the 12 categories of businesses that are considered public accommodations under the statute.  Among other things, the DOJ stated that a vending machine is not a “sales establishment” covered by the law but rather a piece of equipment typically found within public accommodations facilities.

The most significant commentary from the DOJ’s brief concerns a public accommodation’s obligations with regard to self-service equipment provided for public use.  The DOJ stated:

the operator of a public accommodation in which the vending machines is located is better suited to determine whether such changes [(i.e. making the vending machines independently accessible by blind users)] are the most efficient means of complying with the ADA.  When buying or leasing vending machines, some business owners may insist upon the inclusion of accessible features.  Others, however, might choose instead to install the machines at locations within their establishments where their employees will be available to assist customers with disabilities.  The business owner is better positioned than the seller or lessor of the machines to determine what method of ensuring accessibility will be most effective at a particular location.

In other words, it is the DOJ’s position that providing assistance to customers with disabilities is a lawful way to provide access in lieu of procuring accessible vending machines.  Presumably this position would extend to all self-service equipment provided for customer use — at least when there are no privacy concerns.  (In 2014, the DOJ had filed a Statement of Interest in a different case involving allegedly inaccessible point-of-sale devices where it took the position that a public accommodation must provide individuals with disabilities independent access to point-of-sale devices which require the entry of Personal Identification Numbers (PINs).)

Also significant was DOJ’s view that the Supreme Court should not grant review of the case in order to address the question of whether online-only businesses are covered by Title III of the ADA.  The DOJ noted that while “questions concerning Title III’s application to non-physical establishments – including websites or digital services – may someday warrant” the Supreme Court’s attention, this case was not the time or place to do so since the plaintiff here encountered the machines in person, not via telephone or internet.  The DOJ’s suggestion that the Court should defer on this issue suggests that the Department may be evaluating its prior position that online-only businesses are covered by the ADA.

Seyfarth Synopsis:  A federal judge in the Central District of California has allowed a blind plaintiff to continue his lawsuit about the accessibility of a public accommodation’s website under Title III of the ADA, despite the diametrically opposite views of his Central District colleague.

Within a week after a Florida federal judge handed down a trial verdict finding that Winn Dixie had violated Title III of the ADA by having a website that could not be used by the blind plaintiff, U.S. District Judge John Walter of the Central District of California ruled that blind plaintiff Sean Gorecki could continue his lawsuit against retailer Hobby Lobby about the accessibility of its website.  The retailer had asked the court to dismiss the case on various grounds, all of which were rejected by the judge.  The case will now move forward.

This decision is significant for several reasons:

  • The decision illustrates that two judges in the same United States District Court can have diametrically opposite views on the very same issue. In March of this year, U.S. District Judge James Otero dismissed a lawsuit brought by a blind plaintiff against Domino’s Pizza about its allegedly inaccessible website.  Judge Otero found that Domino’s had met its obligations under the law by providing telephonic access via a customer service hotline, and that requiring Domino’s to have an accessible website at this time would violate its constitutional right to due process.  On the due process point, Judge Otero noted that neither the law nor the regulations require websites to be accessible, and that the Department of Justice (DOJ) had failed to issue regulations on this topic after seven years.  As further evidence that covered entities have not been given fair notice of their obligations under the ADA, he cited the DOJ’s official statements from the beginning of the website rulemaking process that (1) it was considering what legal standard of accessibility to adopt, and (2) telephonic access could be a lawful alternative to having an accessible website.  Based on these due process concerns, Judge Otero invoked the “primary jurisdiction” doctrine which “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.”
  • In stark contrast, U.S. District Judge John Walter in the Hobby Lobby case rejected the due process argument and held that the “primary jurisdiction” doctrine did not apply. With regard to the due process argument, Judge Walter stated that “[f]or over 20 years, the DOJ has consistently maintained that the ADA applies to private websites that meet the definition of a public accommodation” and that “Hobby Lobby had more than sufficient notice in 2010 to determine that its website must comply with the ADA.”  Judge Walter also held that the “primary jurisdiction” doctrine did not apply because it only applies to cases whose resolution require the “highly specialized expertise” of a federal agency.  Judge Walter found that this case is a “relatively straightforward claim that Hobby Lobby failed to provide disabled individuals full and equal enjoyment of goods and services offered by its physical stores by not maintaining a fully accessible website.”
  • Judge Walter reserved judgment on what Hobby Lobby would have to do to make its website accessible until after a decision on the merits. The Court specifically noted that the plaintiff was not asking for conformance with a specific technical rule such as the Website Content Accessibility Guidelines 2.0.

Because Judge Walter’s decision was on a motion to dismiss and not a final judgment, Hobby Lobby does not have the right to appeal the decision at this time.  We predict that the case will settle before the court reaches the merits of the case.

Seyfarth Synopsis: Today’s first impression trial verdict finding retailer Winn-Dixie liable under Title III of the ADA for having an inaccessible website suggests that public accommodations should focus on their website accessibility efforts now.

As we reported yesterday, Florida federal District Court Judge Robert Scola last week presided over the first trial in the history of the ADA about an allegedly inaccessible website.  Today, Judge Scola issued a 13-page Verdict and Order finding that grocer Winn-Dixie violated Title III of the ADA by having a website that was not useable by plaintiff Juan Carlos Gil to download coupons, order prescriptions, and find store locations.  Mr. Gil is blind and uses screen reader software to access websites.  Judge Scola ordered injunctive relief, including a draft three-year injunction we have included below, and awarded Mr. Gil his attorneys’ fees and costs.

Although the decision is not binding on any other federal courts or judges – not even in the same judicial district – it is significant for a number of reasons.

First, it is the first decision to hold, after a full trial, that a public accommodation violated Title III of the ADA by having an inaccessible website.  To the extent that businesses are considering whether to settle or litigate these cases, this decision makes the possibility of an adverse verdict much more real.

Second, the draft injunction adopts the Web Content Accessibility Guidelines (WCAG) 2.0 as the accessibility standard that Winn-Dixie must meet in making its website accessible.  WCAG 2.0 AA is a set of guidelines developed by a private group of accessibility experts and has not been adopted as the legal standard for public accommodation websites, although it has been incorporated into many consent decrees, settlement agreements, and is the standard the Department of Justice referenced in the Title II rulemaking process.  The court’s adoption of this set of guidelines further points to WCAG 2.0 AA as the de facto standard for website accessibility.

Third, the court did not consider the $250,000 cost of making the website accessible to be an undue burden.  The court said this cost “pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for the Plenti program.”

Fourth, commenting on an issue causing many businesses concern, the court held Winn-Dixie responsible for the entire website’s lack of accessibility even though parts of the website are operated by third party vendors.  It stated: “[M]any, if not most, of the third party vendors may already be accessible to the disabled and, if not, Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.”

The court issued the following draft injunction, and ordered the parties to confer about the deadlines to be inserted in the blanks.

***

Pursuant to the terms of this Order and Injunction, Winn-Dixie, Inc.:

  1. Shall not, no later than _____(date) _____, deny individuals with disabilities, including the Plaintiff, the opportunity to participate and benefit from the goods, services, facilities, privileges, advantages, and accommodations provided through its website www.winndixie.com. The website must be accessible by individuals with disabilities who use computers, laptops, tablets, and smart phones.
  2. Shall not, no later than _____(date) _____, provide individuals with disabilities, including the Plaintiff, an unequal opportunity to participate and benefit from the goods, services, facilities, privileges, advantages, and accommodations provided through its website www.winndixie.com. The website must be accessible by individuals with disabilities who use computers, laptops, tablets and smart phones.
  3. No later than _____(date) _____, shall adopt and implement a Web Accessibility Policy which ensures that its website conforms with the WCAG 2.0 criteria.
  4. No later than _____(date) _____, shall require any third party vendors who participate on its website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria.
  5. No later than _____(date) _____, shall make publicly available and directly link from the www.winndixie.com homepage, a statement of WinnDixie’s Accessibility Policy to ensure the persons with disabilities have full and equal enjoyment of its website and shall accompany the public policy statement with an accessible means of submitting accessibility questions and problems.
  6. No later than _____(date) _____, and at least once yearly thereafter, shall provide mandatory web accessibility training to all employees who write or develop programs or code for, or who publish final content to, www.winndixie.com on how to conform all web content and services with WCAG 2.0 criteria.
  7. No later than _____(date) _____, and at least once every three months thereafter, shall conduct automated accessibility tests of its website to identify any instances where the website is no longer in conformance with WCAG 2.0.
  8. If the Plaintiff believes the Injunction has been violated, he shall give notice (including reasonable particulars) to the Defendant of such violation. The Defendant shall have 30 days from the notice to investigate and correct any alleged violations. If the Defendant fails to correct the violation, the Plaintiff may then seek relief from the Court.
  9. In light of what the Court has already found to be the Defendant’s sincere and serious intent to make its website accessible to all, this Injunction will expire in three years.

***

In the absence of any regulations setting forth the requirements for a website accessibility program, this injunction, once finalized, will provide a judicially-approved framework for such a program for those public accommodations that want to adopt one.

Edited by Kristina M. Launey.