6 Web Accessibility Takeaways from the Winn-Dixie Accessibility Decision

June 15, 2017 |
image of Winn Dixie Store: 6 Web Accessibility Takeaways from the Winn-Dixie Accessibility Decision

On June 12, 2017 Judge Scola of the U.S. District Court for the Southern District of Florida ordered Winn-Dixie to make its website accessible. The Judge decided that Winn-Dixie’s website is heavily integrated with the company’s physical store locations, making it subject to the Americans with Disabilities Act (ADA). This decision has deep ramifications, both legally and practical ramifications.

Legal Ramifications

Winn-Dixie was the first web accessibility case to go fully to trial—and for a Federal court to hold a major corporation liable for an inaccessible website. This ruling will likely encourage the plaintiff’s bar to bring more web accessibility lawsuits. Apart from that obvious fact, however, the case represents a more powerful, but subtle shift in legal theory.

The Winn-Dixie case marks a change of tide for the 11th Circuit in web accessibility. Until now, courts in the 11th Circuit had ruled several times that the ADA does not cover websites unless there is clear “nexus” between a company’s online activities and its physical stores. In case after case, they had held that this test failed unless the plaintiff could show that a website affected “access to” a store or physical location used by the company in offering goods or services to the public. In the Winn-Dixie case, however, the court found this nexus due to the website being “heavily integrated” with the physical stores:

“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.”

This kind of nexus has little to do with physical access to Winn-Dixie’s stores.

What strikes me about these online activities is that they are not unusually “cutting edge” and instead represent everyday services that many retailers offer for their customers. This is also the same kind of “nexus” that was instrumental in the court’s holding in National Federation of the Blind v. Target Corporation from the U.S. District Court for the Northern District of California (part of the 9th Circuit).

Changing tide for web accessibility in Florida

Before the Winn-Dixie case, I had always said that it was futile to bring a web accessibility lawsuit in Florida or anywhere else in the 11th Circuit. While the courts had always paid lip service to the “nexus” requirement, this standard was impossible to meet without showing that the website directly affected access to a physical location. The Winn-Dixie case represents a softening of this standard to conform to the same level of “nexus” required by the 9th Circuit. So in addition to being emboldened to bring more web accessibility lawsuits, plaintiff’s attorneys will have a much easier time because the law will be on their side.

Practical ramifications to avoid facing a web accessibility lawsuit

What should a company do to avoid facing a lawsuit? To answer that, let’s return to the Winn-Dixie opinion:

“Although Winn-Dixie argues that Gil (the plaintiff) has not been denied access to Winn-Dixie’s physical store locations as a result of the inaccessibility of the website, 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 . . . ‘”

Instead of emphasizing only access to physical stores, the Court instead emphasizes equal access to goods and services, as required by the ADA. In a nutshell, anything that your company does that affects how goods or services are delivered in your physical locations needs to be accessible.

Your website is not just a venue for marketing and advertising anymore. A website is often the first time a person comes in contact with your organization, and more frequently, it is becoming the primary gateway into your business. It is well known that a user will quickly move on to another vendor if a website is difficult to use. Accommodations for the blind and people with other disabilities are no different: all of us will move on to a company that makes it easier for us to receive their products and services in the way we need to access them.

The terms of the injunction are interesting because the Court has effectively mandated a few aspects of good business practices that Winn-Dixie should have been following all along.

  1. Don’t deny anybody access to your goods and services. This just makes good business sense. The Court focused on accessing goods and services from multiple devices, including tablets and smartphones. This is an increasingly important business objective for most of today’s businesses—and accessibility should be folded into that effort.
  2. Adopt and implement a web accessibility policy. Every website should have an accessibility policy. Watch a video on why a Web Accessibility Policy is great legal protection for the inaccessible portions of your site.
  3. Let your users ask questions and discuss problems (and answer them). Again, this is simply good business. Listen and respond to your users’ problems and those disgruntled people often transform into your most loyal customers.
  4. Hold your third-party vendors to the same standards as you do yourself. They might not work for you, but their work directly reflects upon your brand.
  5. Train your employees regularly. You provide technical training to the web developers and you hold content publishers to some branding standards. Accessibility is no different. It’s so much cheaper to design with accessibility in mind than it is to remediate later.
  6. Maintain the quality over time through periodic testing. The Court mandated a practice we advise our customers to do. Websites are fluid and you need to have measurable and repeatable methods for ensuring that all new and changed content meets your high standards.

When translated from legalese, this judgment mandates good business practices. Maybe the fear of following in Winn-Dixie’s footsteps will prompt other businesses to make their websites accessible, but I also hope that we can all move away from litigation as a primary motivator and embrace these orders as the good web policies they are.

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Ken Nakata

Ken Nakata, JD, CIPP/US is the one of the most well-known attorneys in the area of IT accessibility and is the Director of Cryptzone’s Accessibility Consulting Practice (ACP). Nakata’s work focuses on Web and software accessibility from both a legal and technical perspective. Nakata’s ACP team helps organizations manage the change towards accessibility in all aspects, providing consulting services aimed at shaping their accessibility policies and practices, and evaluating the overall state of their Web properties leveraging Cryptzone’s accessibility solutions. He is also a board member for the International Association of Accessibility Professionals (IAAP),of which Cryptzone is a founding member.

Nakata worked for twelve years as a Senior Trial Attorney with the U.S. Department of Justice. He has argued on behalf of the United States government many times before the federal courts and has helped shape the government’s policies for the Americans with Disabilities Act and Section 508 of the Rehabilitation Act. Nakata also worked as Director of Accessibility and Government Compliance at BayFirst Solutions, a Washington, DC consulting firm.

In 2000, Attorney General Janet Reno presented Nakata with the Attorney General’s Award for Excellence in Information Technology. In addition to practicing law, Nakata is active in software and web-based technologies, including Java, JavaScript, SQL, and ColdFusion. In July 2001, he was certified by Sun Microsystems as a programmer for the Java 2 Platform. Nakata is a frequent speaker on both law and technology and is equally adept at conducting one-on-one workshops with programmers and developers as well as explaining law and policy to large audiences. He holds a Bachelors of Art degree in mathematics from John Hopkins University and a Juris Doctor degree from the University of Pennsylvania Law School, and is admitted to the bars of New York, the District of Columbia, Pennsylvania and Washington.

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