Seyfarth Synopsis: Florida court rules that plaintiff must allege more than being unable to learn about a brick-and-mortar business to state a claim that an allegedly inaccessible website violates the ADA. 

Allegations that an inaccessible website prevents a blind plaintiff from “learning” about a brick-and-mortar location are insufficient to state an ADA claim, according to one recent federal court decision in Florida. In Price v. Everglades College, the plaintiff alleged that he called a private university to learn about the institution, but was directed instead to its website.  While attempting to visit the website, he allegedly discovered that his screen reader software could not access information provided there, and Plaintiff thereafter filed suit under Title III of the ADA.  Defendant filed a motion to dismiss on the grounds that Plaintiff had failed to state an ADA claim.

The Court granted the motion. It held that allegations that the plaintiff could not learn about the university were insufficient, and that instead the plaintiff had to plead facts sufficient to demonstrate that the alleged digital barriers prevented him from enjoying access to the university’s brick-and-mortar facilities.  Plaintiff did not allege, for example, that he could not apply to the university, pay tuition, or use the student portal.

Courts in the 11th Circuit have required that a nexus exist between the website at issue and a physical business location (some courts from other Circuits do not follow this approach).  Price clarifies that a plaintiff cannot satisfy this nexus requirement in this jurisdiction by alleging “the mere existence of some connection or link” between the inaccessible website, on one hand, and a brick-and-mortar location, on the other.

The decision is welcome news for businesses barraged by increasing numbers of website accessibility lawsuits in recent months and a challenging litigation landscape in 2018.  The decision is also noteworthy for institutions of higher learning, which have also been targeted in these cases as reported in the national news media.  Decisions such as Price may be helpful in defending serial ADA website lawsuits filed by individuals with only tenuous connections to the businesses and institutions they sue.

Edited by Minh N. Vu and Kristina M. Launey.

On May 21, a California state court in Los Angeles held on summary judgment that the Whisper Lounge restaurant violated California’s Unruh Act by having a website that could not be used by a blind person with a screen reader, and ordered the restaurant to make its website comply with the Web Content Accessibility Guidelines (WCAG) Level 2.0 AA.  The court also ordered the restaurant to pay $4,000 statutory damages.  This is the second decision by a California state court on the merits of a website accessibility case.  The first decision concerned the Bags n’ Baggage website.  In 2017, a Florida federal judge conducted the first trial in a website accessibility case against Winn Dixie and held that the grocer’s website violated the ADA because it was not accessible to the blind plaintiff, and ordered Winn Dixie to make its website conform to WCAG 2.0 AA.

The court in the Whisper Lounge case rejected – as most courts on similar facts have – the restaurant’s argument that the website is not a place of public accommodation under the Americans with Disabilities Act (ADA).  The court found that the restaurant’s website “falls within the category of ‘services….privileges, advantages, or accommodations of’ a restaurant, which is a place of public accommodation under the ADA.”

Next, the court noted that the restaurant presented no evidence in opposition to the plaintiff’s showing that the website was inaccessible on February 20, 2017 – the date the plaintiff said she attempted to use the website.  The restaurant only submitted a declaration stating that the declarant was generally able to use the screen reader NVDA on the website from 2014 through 2017, without addressing the specific barriers the plaintiff said prevented her from using the website.

The restaurant also argued that it provided access to the information on its website by having a telephone number and email.  The Court rejected this argument as well, finding that the provision of a phone number and email does not provide “equal enjoyment of the website”, as the ADA requires, but instead imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have immediate access like sighted customers.  Thus, the court reasoned, the email and telephone number do not provide effective communication “in a timely manner” nor protect the independence of the visually impaired.  The court did not say whether a toll-free number that is staffed 24-hour a day would have yielded a different outcome.

Finally, the Court rejected the restaurant’s argument that the WCAG 2.0 AA is not yet a legal requirement, finding that the Complaint did not seek to hold the restaurant liable for violating the WCAG 2.0 AA.  Rather, the Complaint alleged that the website discriminated against the plaintiff by being inaccessible and sought an injunction to require the restaurant to make its website accessible to the blind.  The Court also rejected the restaurant’s arguments that requiring it to have an accessible website violated due process and the court should wait until the Department of Justice issues regulations addressing website accessibility.  The Court noted that the fact that the restaurant was redesigning its website did not render the case moot because the restaurant did not establish that “subsequent events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

The decision does have a silver lining for the defense bar.  The Court noted that the plaintiff was entitled to only $4,000 in damages under the Unruh Act, which provides for a minimum of $4,000 in statutory damages for each incident of discrimination.  The court held that plaintiff’s repeated visits to the same inaccessible website did not establish separate offenses for purposes of calculating damages.

By Minh N. Vu

For more than a decade, courts have struggled with the question of whether the ADA’s coverage of twelve “places of public accommodation” (e.g., places of lodging, entertainment, retailers, restaurants, service establishments) is limited to physical places, or whether they can be virtual.  The answer to this question dictates whether virtual places, such as websites, are covered by Title III of the ADA, and therefore must be accessible to individuals with disabilities.  If accessibility is required, businesses must, among many other things, ensure that audio content is communicated to deaf users in some effective manner (e.g., captioning, transcripts) and that visual content can be read by screen readers used by blind readers.

In 2006, federal District Court Judge Marilyn Patel in San Francisco avoided answering the question directly by holding that Target’s retail website is a covered “place of public accommodation” because there was a “nexus” between the website and Target’s brick and mortar stores.  This week, federal Massachusetts District Court Judge Michael A. Ponsor pushed the envelope one step further in National Association for the Deaf v. Netflix (June 19, 2012) by holding that Netflix’s web only video streaming business, “Watch Instantly,” is a “place of public accommodation” covered under Title III of the ADA. 

The decision is not entirely surprising.  In 1994, the First Circuit held in Carparts Distribution Center v. Automotive Wholesaler’s Association of New England, that the phrase “place of public accommodation” is not limited to physical places.  The Court allowed an ADA Title III claim to proceed against an insurance plan that provided its benefits through the employer and had no physical place of business patronized by customers. 

That said, the extension of this concept to include all websites of public accommodations regardless of whether the business has a physical presence has a much greater impact.  Essentially every public accommodation business in the world that has a website that can be accessed by customers in the United States and its Territories might be covered under Title III of the ADA.  What would happen if the United States and other countries adopted conflicting technical standards for an “accessible” website?  As with many other areas of the ADA (e.g., pool lifts), the lawyers and consultants will benefit greatly from the complicated issues that will arise.  It may be time for Congress to step in to deal with these issues now in a certain and sensible fashion rather than allowing the law to develop in piecemeal fashion in the courts.    

Further complicating matters is the fact that the U.S. Department of Justice (“DOJ”) has yet to issue regulations setting technical standards for accessible public accommodations websites.  Despite the lack of standards, the DOJ has made clear that it expects websites to be “accessible” — whatever this might mean. Most businesses seeking to make their websites accessible to individuals with disabilities have adopted WCAG 2.0, a standard developed by a private group called the Worldwide Web Consortium.  The DOJ has signaled in an Advanced Notice of Proposed Rulemaking for website accessibility standards that it is considering adopting WCAG 2.0 as the legal standard.  However, because making websites comply with this standard can cost millions of dollars, many businesses understandably want a definitive legal standard to be in place before investing that kind of money.  Businesses are increasingly caught between a rock and a hard place:  Adopt a standard that could change before it becomes legally binding, or risk exposure to class action lawsuits that could cost millions of dollars.  The Netflix decision may well tip the scale in favor of adopting WCAG 2.0 now for many businesses with and without physical locations. 

The San Francisco Chronicle also published an interesting article on the Netflix decision.  For more interesting commentary on this decision, see this article from the Cato Institute.