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What the Winn-Dixie Case & Other Important Rulings Mean for the Future of Web Accessibility Under the ADA

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On June 13, 2017, the Florida Federal District Court ruled that grocery store chain Winn-Dixie had violated Title III of the ADA for denying blind users “full and equal enjoyment” of the Winn-Dixie website. The case was brought forth by a blind man who was unable to download coupons, order prescriptions, or find store locations through his screenreader.

The court mandated Winn-Dixie had to adopt a Web Accessibility Policy ensuring the website conformed with WCAG 2.0 criteria.

As the digital age continues to bring new challenges for accessibility, this groundbreaking ruling is shining a light on the need for corporate web accessibility.

This webinar will be presented by Bobby Silverstein, a nationally-recognized disability attorney and one of the architects of the ADA. In this webinar, Bobby will take us through this and other historical rulings and the impact they have for corporate entities.

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What the Winn-Dixie Case & Other Important Rulings Mean for the Future of Web Accessibility Under the ADA

  1. 1. What The Winn- Dixie Case & Other Important Rulings Mean For the Future of Web Accessibility Under The ADA Bobby Silverstein Principal Powers Pyles Sutter & Verville PC www.3playmedia.co m Twitter: @3playmedia • Type questions in the window during the presentation • This webinar is being recorded & will be available for replay • To view live captions, please follow the link in the chat window Patrick Loftus (Moderator) Marketing Assistant 3Play Media Presented by Bobby Silverstein, an architect of the ADA
  2. 2. September 12, 2017 3Play Media Webinar Recent ADA Rulings and the Future of Digital Accessibility Winn Dixie & Other Important Decisions
  3. 3. PRESENTER Robert “Bobby” Silverstein Bobby.Silverstein@powerslaw.com Principal POWERS PYLES SUTTER & VERVILLE, PC On behalf of The Partnership on Employment & Accessible Technology (PEAT) 3
  4. 4. DISCLAIMER • PEAT receives funding from the Office of Disability Employment Policy (ODEP), U.S. Department of Labor (DOL) • The views expressed during this webinar are those of the presenter and do not necessarily represent the views of ODEP, DOL, PEAT, or any other agency or organization. • This presentation does not provide legal advice; need to consult with your attorney 4
  5. 5. OVERVIEW OF THE ADA (1/5) STRUCTURE OF ADA • Title I (employment) • Title II (state and local governments) • Title III (public accommodations) QUALIFIED INDIVIDUAL Person with a disability who, with or without a reasonable accommodation, meets the essential eligibility requirements. 5
  6. 6. OVERVIEW OF THE ADA (2/5) DEFINITION OF DISABILITY (ADA Amendments Act) • Physical or mental impairment that substantially limits one or more major life activities; • Record of such an impairment; or • Being regarded as having such an impairment. • Definition of disability broadly construed. 6
  7. 7. DEFINITION OF PUBLIC ACCOMMODATION • Statute: A private entity is considered a public accommodation if its operations affect commerce and the private entity falls within one of twelve enumerated categories. • Regulations: Public accommodation means a private entity that owns, leases (or leases to), or operates a place of public accommodation. A place of public accommodation means a facility operated by a public entity whose operations affect commerce and falls within at least one of 12 categories. 7 OVERVIEW OF THE ADA (3/5)
  8. 8. DISCRIMINATION UNDER TITLE III No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods and services, facilities, privileges and advantages of any place of public accommodation by any private entity who owns, leases, or operates a place of public accommodation. Discrimination includes: • Contract or other arrangement that has discriminatory effect • Criteria or methods of administration that has discriminatory effect • Failure to provide effective and meaningful opportunity, including effective communication • Failure to provide reasonable accommodation 8 OVERVIEW OF THE ADA (4/5)
  9. 9. AFFIRMATIVE DEFENSES • Undue hardship • Fundamental alteration 9 OVERVIEW OF THE ADA (5/5)
  10. 10. ADA AND ACCESSIBLE TECHNOLOGY (1/3) HISTORICAL TREATMENT OF TECHNOLOGY • Internet did not exist when Congress enacted the ADA. • However, Congress intended that the concept of discrimination “should keep pace with rapidly changing technology of the times.” [H.R. Rpt. No. 101-485, pt 2 at page 108] ACCESS TO INTERNET BECOMING GATEWAY CIVIL RIGHTS ISSUE TRAVESTY IF COMPANIES AND OTHER COVERED ENTITIES DO NOT ADDRESS DIGITAL DIVIDE 10
  11. 11. ADA AND IMPLEMENTING REGULATIONS CURRENTLY ENSURE ACCESS TO ICT • Effective and meaningful opportunity to access information and data enjoyed by others, including effective communication regarding data and information • Methods of administration that facilitate access, including access to goods and services through various means adopted by a covered entity, including via websites • Access to website— the digital equivalent to ensuring access to facilities 11 ADA AND ACCESSIBLE TECHNOLOGY (2/3)
  12. 12. EFFORTS BY DOJ TO UPDATE ADA REGULATIONS TO INCLUDE SPECIFIC STANDARDS APPLICABLE TO ACCESSIBLE ICT • Notice of Proposed Rulemaking (2010) • Supplemental Notice of Proposed Rulemaking (2016) • Placed on “inactive status list” (2017) 12 ADA AND ACCESSIBLE TECHNOLOGY (3/3)
  13. 13. DOJ SETTLEMENTS AND COURT CASES RE: ADA AND TECHNOLOGY DOJ Settlement Agreements Court Cases • Winn-Dixie Decision • Hobby Lobby Decision • Domino’s Pizza Decision • SeaWorld Decision • Bang & Olufsen America Decision 13
  14. 14. DOJ SETTLEMENT AGREEMENTS (1/2) • 171 Settlement Agreements with state and local governments and public accommodations • Accessibility requirements (websites, online systems, mobile apps, and other ICT) • Technical Accessibility Standards (WCAG 2.0 Success Criteria A and AA) 14
  15. 15. Methods of Administration • Policy adoption and distribution • Evaluation, testing, and feedback • Accessibility plans, including procurement policies • Training and Guidance • Responsible Individual/Office/Consultants 15 DOJ SETTLEMENT AGREEMENTS (2/2)
  16. 16. WINN-DIXIE DECISION (1/5) BACKGROUND • Winn-Dixie is the owner and operator of a regional chain of grocery stores, some of which have pharmacies. • Winn-Dixie has a website that is heavily integrated with physical store locations and operates as a gateway to the physical store locations, allows customers to refill prescriptions, find store locations, and access digital coupons. • The website is inaccessible. 16
  17. 17. ISSUES • Whether Winn-Dixie’s website is subject to the ADA as a service of a public accommodation • Whether the plaintiff was denied equal enjoyment of Winn Dixie’s goods and services because of disability • Whether the requested modifications are reasonable 17 WINN-DIXIE DECISION (2/5)
  18. 18. DISCUSSION OF WEBSITES AND DEFINITION OF PUBLIC ACCOMMODATION • DOJ STATEMENT OF INTEREST: Under the plain language of the statute and regulations, DOJ asserts that Title III applies to discrimination in the goods and services “of” a place of public accommodation; rather than being limited to those goods and services provided “at” or “in” a place of public accommodation. • Goods and services provided via a website or off-site via telephone or mail are covered i.e., Title III does not limit places of public accommodations to physical spaces. 18 WINN-DIXIE DECISION (3/5)
  19. 19. COURTS SPLIT • Courts split on whether ADA covers all goods and services provided by a public accommodation, including those provided via websites, or limits public accommodations to physical spaces (or nexus to a physical space). • First, Second, and Seventh Circuit Courts of Appeals have concluded that Title III does not limit places of public accommodations to physical spaces. • Third, Sixth, and Ninth Circuit Courts of Appeals have concluded that places of public accommodations must be physical places, and that goods and services without a sufficient nexus to a physical place are not covered under Title III. 19 WINN-DIXIE DECISION (4/5)
  20. 20. HOLDING • Court need not decide whether Winn-Dixie’s website is a public accommodation in and of itself because its website is heavily integrated with its physical store locations and operates as a gateway to the physical store locations. • ADA does not merely require physical access to a place of public accommodation; rather the ADA requires the provision of full and equal enjoyment of the goods, services, facilities, privileges of any place of public accommodation. • Remediation measures in conformity with the WCAG 2.0 Guidelines will provide plaintiff with access. • June 2017 Decision 20 WINN-DIXIE DECISION (5/5)
  21. 21. HOBBY LOBBY DECISION (1/3) • On June 15, 2017, a district court judge in central California denied the company’s motion to dismiss plaintiff’s amended complaint. • Hobby Lobby operates department stores in California and other states. • The company also operates a website. By visiting the website, consumers can purchase an array of products on the website, some of which are available in Hobby Lobby stores. 21
  22. 22. • In addition, consumers can use the website to search for store locations, view special pricing offers, obtain promotional coupons, and purchase gift cards. • Plaintiff alleges the website is inaccessible. • The Court accepted DOJ position that Title III applies to websites of private entities that meet the definition of public accommodation based on general prohibitions of discrimination and specific requirement ensuring effective communications. 22 HOBBY LOBBY DECISION (2/3)
  23. 23. • For over 20 years, DOJ has consistently maintained that the ADA applies to private websites that meet the definition of public accommodation. Accordingly, the Court finds Hobby Lobby has more than sufficient notice to determine that its website must comply with the ADA. 23 HOBBY LOBBY DECISION (3/3)
  24. 24. DOMINO’S PIZZA DECISION (1/2) March 20, 2017 • The court granted the company’s motion to dismiss without prejudice. • The court concluded that little or no deference is owed to statements made by DOJ through documents filed in the course of litigation, including statements regarding its longstanding position that websites are covered and settlement agreements entered into with public accommodations. 24
  25. 25. • Congress has vested the Attorney General with authority to promulgate regulations clarifying how places of public accommodation must meet their statutory obligations. • Such regulations are necessary for the court to determine what obligations a regulated entity must abide by in order to comply with Title III. • The court calls on Congress, the AG, and DOJ to take action to set minimum web accessibility standards for the benefit of the disability community, those subject to Title III, and the judiciary. 25 DOMINO’S PIZZA DECISION (2/2)
  26. 26. SEAWORLD DECISION January 17, 2017 • A Magistrate in Florida held that plaintiff may not claim a violation of Title III of the ADA based on an internet website’s accessibility. SeaWorlds’s online website is not a physical or public accommodation under the ADA. 26
  27. 27. BANG & OLUFSEN AMERICA DECISION (1/3) February 2, 2017 • Court granted plaintiff’s motion to dismiss the case without prejudice. • The defendant is the owner and operator of a chain of high-end audio and visual equipment stores. 27
  28. 28. • The defendant’s website allows customers to, among other things, identify physical locations; browse and search for brand merchandise; research information about merchandise and custom installation services and make private appointments with sales representatives at brick and mortar retail locations. • Court recognizes the applicability of the nexus approach. However, in this case the plaintiff alleged that he only wanted the opportunity to shop from his home. 28 BANG & OLUFSEN AMERICA DECISION (2/3)
  29. 29. • Based on these allegations, it appears the plaintiff never intended to utilize the company’s physical location. • Because the plaintiff did not allege that the company’s website impeded his personal use of retail locations, his ADA claim must be dismissed, without prejudice. The ADA does not require places of public accommodations to create full-service websites for persons with disabilities. 29 BANG & OLUFSEN AMERICA DECISION (3/3)
  30. 30. SUMMARY • Internet and Intranet integral to doing business—gateway to effectively communicating information and data to consumers, applicants and employees • Travesty if anyone left behind • Universal design ensures effective and meaningful opportunity for the greatest number of people • Safe Harbor: WCAG 2.0 A and AA 30
  31. 31. RESOURCES (1/2) PARTNERSHIP ON EMPLOYMENT & ACCESSIBLE TECHNOLOGY (PEAT) PEAT promotes the employment, retention, and career advancement of people with disabilities through the development, adoption, and promotion of accessible technology. 31
  32. 32. PEAT resources and activities include: • PEATWorks.org, a central hub for accessible technology-related news, events, tools and resources. • TalentWorks the latest PEAT resource that helps employers and human resources (HR) professionals make their eRecruiting technologies accessible to all job seekers—including those with disabilities. • PEAT Talks, a virtual speaker series showcasing organizations and individuals whose work is advancing accessible technology in the workplace. Held the third Thursday of every month at 2:00 p.m. 32 RESOURCES (2/2)
  33. 33. Q&A www.3playmedia.com/webinar s/

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