By Doug Taylor, Bean, Kinney & Korman
Web technology has made it possible for individuals to shop virtually for goods and services from anywhere, at any time. In 2016, for the first time ever, more consumers were shopping online than in stores, according to Forbes. E-commerce retail sales numbers are staggeringly large, adding up to $111.5 billion for the second quarter of 2017, according to the U.S. Census Bureau.
Web technology has made it possible for individuals to shop virtually for goods and services from anywhere, at any time. In 2016, for the first time ever, more consumers were shopping online than in stores, according to Forbes. E-commerce retail sales numbers are staggeringly large, adding up to $111.5 billion for the second quarter of 2017, according to the U.S. Census Bureau.
Yet, with this dramatic surge in e-commerce has come a corresponding increase in the number of lawsuits that have been filed against business entities under Title III of the Americans with Disabilities Act (ADA). In these lawsuits, individuals claim unlawful interference with their right to obtain full access to commercial and retail websites to make purchases, learn about products, and enjoy the privileges that are available to the non-disabled public. Whether the ADA’s prohibition against discrimination in a place of public accommodation is applicable in a virtual environment, however, is a question that has divided the courts into two camps. Some have concluded that “places of public accommodation” are tantamount to “physical structures,” with the full right to enjoy goods and services limited to those offered at a brick-and-mortar locations. On the other side are courts that have adopted a more expansive reading of “public accommodations,” emphasizing that the ADA covers “the sale of goods and services to the public,” rather than how or where the sale is executed.
Under the ADA:
Under the ADA:
| No individual shall be discriminated against 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. |
The ADA defines “place of public accommodation” primarily in the context of a physical structure or place, such as a hotel, restaurant, bar, theater, concert hall, grocery store, bank, gas station, pharmacy, or hospital.
Recently, a growing number of courts have concluded that the ADA’s public accommodations protections extend beyond brick-and-mortar to the internet. In June, a federal district judge in Florida ruled that grocer Winn Dixie had violated the ADA because its website was not fully compatible with widely used screen access applications. Gil, a visually impaired customer, had been denied full access to Winn Dixie’s website, interfering with his ability to order prescription medications, price shop, find store locations, and access store coupons online.
Last month, a New York court found that Blick Art Materials, a nationwide bricks and mortar art supplies chain, had discriminated against a visually impaired consumer by denying him full access to buy Blick’s products online. The Blick court rejected the notion that a place of public accommodation must be tied to a physical structure to qualify for ADA protection. A second New York court reached the same conclusion in an ADA website accessibility case against restaurant retailer Five Guys.
While there have been no reported ADA website accessibility decisions from the federal district courts in Virginia as of yet, that will undoubtedly change soon. The Winn Dixie, Blick, and Five Guys decisions carry with them several important takeaways, even if they are not binding decisions in Virginia. First, the trend has been for courts to unmoor the ADA’s definition of “place of public accommodations” from a physical brick-and-mortar location and expand it to include commercial and retail web activity. This carries with it the spectrum of businesses having to make costly website accessibility updates on an expedited basis and having to defend against ADA litigation in federal district court.
Second, the courts – and Department of Justice – have essentially adopted the Web Content Accessibility Guidelines 2.0 (WCAG 2.0, levels A and AA) as the benchmarks for website accessibility. WCAG 2.0 was created by a consortium of 420 member organizations that develop standards for the World Wide Web. The WCAG 2.0 consists of four overarching principles: 1) Make it easier for users to see and hear virtual content; 2) Help users navigate and find content from a key board; 3) Make text more readable and understandable; and 4) Maximize compatibility with current and future user applications. More information about WCAG 2.0 can be found here.
Recently, a growing number of courts have concluded that the ADA’s public accommodations protections extend beyond brick-and-mortar to the internet. In June, a federal district judge in Florida ruled that grocer Winn Dixie had violated the ADA because its website was not fully compatible with widely used screen access applications. Gil, a visually impaired customer, had been denied full access to Winn Dixie’s website, interfering with his ability to order prescription medications, price shop, find store locations, and access store coupons online.
Last month, a New York court found that Blick Art Materials, a nationwide bricks and mortar art supplies chain, had discriminated against a visually impaired consumer by denying him full access to buy Blick’s products online. The Blick court rejected the notion that a place of public accommodation must be tied to a physical structure to qualify for ADA protection. A second New York court reached the same conclusion in an ADA website accessibility case against restaurant retailer Five Guys.
While there have been no reported ADA website accessibility decisions from the federal district courts in Virginia as of yet, that will undoubtedly change soon. The Winn Dixie, Blick, and Five Guys decisions carry with them several important takeaways, even if they are not binding decisions in Virginia. First, the trend has been for courts to unmoor the ADA’s definition of “place of public accommodations” from a physical brick-and-mortar location and expand it to include commercial and retail web activity. This carries with it the spectrum of businesses having to make costly website accessibility updates on an expedited basis and having to defend against ADA litigation in federal district court.
Second, the courts – and Department of Justice – have essentially adopted the Web Content Accessibility Guidelines 2.0 (WCAG 2.0, levels A and AA) as the benchmarks for website accessibility. WCAG 2.0 was created by a consortium of 420 member organizations that develop standards for the World Wide Web. The WCAG 2.0 consists of four overarching principles: 1) Make it easier for users to see and hear virtual content; 2) Help users navigate and find content from a key board; 3) Make text more readable and understandable; and 4) Maximize compatibility with current and future user applications. More information about WCAG 2.0 can be found here.
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