Although the Department of Justice does not have rules for places of public accommodation specific to websites, organizations and businesses that have websites are already at risk.  Blind or visually impaired plaintiffs have been filing federal lawsuits against companies regarding the accessibility of their websites.  Four recent cases, discussed below, have had varied outcomes.

A federal court judge in California recently ruled that a blind plaintiff, Sean Gorecki, could continue his lawsuit against a retailer, Hobby Lobby, about the accessibility of it’s website.  Hobby Lobby had asked the court to dismiss the case on various grounds, all of which were rejected by the judge.

A week earlier, a federal judge in Florida handed down a verdict in the case of Gil v. Winn-Dixie Stores, Inc., finding that Winn-Dixie had violated Title III of the Americans with Disabilities Act (“ADA”) by having a website that could not be used by the blind plaintiff.

In the Winn-Dixie case, Judge Robert Scola ruled on three issues:

• whether Winn-Dixie’s website was subject to the ADA;
• whether the plaintiff was denied the full and equal enjoyment of Winn-Dixie’s goods and services because of his disability; and
• whether the requested modifications to Winn-Dixie’s website were reasonable and readily achievable.

First, the court concluded that Winn-Dixie’s website was subject to the ADA.  In his ruling, the judge noted that the website operates as a gateway to the company’s physical stores.  Although the ADA does not contemplate websites, it does deal very clearly with physical stores.

Second, the judge determined that Winn-Dixie’s website violated the ADA because it was incompatible with screen reader software for the visually impaired, and therefore was inaccessible to visually impaired persons.  Although third-parties operated parts of the website, the court held Winn-Dixie responsible for the lack of accessibility because the company was in fact responsible for the third-parties that operated parts of the website.

Lastly, the judge ruled that the cost of making the website accessible – $250,000 – was not an undue burden.  The cost was small compared to the millions of dollars Winn-Dixie spent to launch and later remake the website.

The Winn-Dixie ruling contrasts with two wins for retailers in this area of law from earlier this year.

In a Florida case, a federal court judge dismissed a lawsuit because the plaintiff failed to allege that his ability to use Bang & Olufsen’s retail website prevented him from accessing it’s stores.  The court explicitly rejected the argument that the ADA requires a website to provide the same online shopping experience as it does for non-disabled people.  In his ruling, the judge wrote:  “if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store.”

In a California case, a federal court dismissed a lawsuit by a blind plaintiff who claimed that he could not use his screen reader to order a pizza from Domino’s Pizza.  The court rejected the argument that the ADA did not cover websites, but ruled that Domino’s had met it’s obligations under the law by providing access to essentially the same services by phone.  The court noted that requiring Domino’s to have a disabled-accessible website at this time, when neither law nor regulations explicitly require websites to be disabled-accessible, would violate the company’s constitutional rights.

To conclude, brick and mortar retailers who integrate online experiences with their physical stores may be required by the ADA to make their websites disabled-accessible.  Despite the varied results in these cases, the rise in these types of cases will inspire more demands and lawsuits against retailers asserting website accessibility claims.  Businesses should consult with a legal professional to determine if the ADA requires them to make their website disabled-accessible.