Inaccessible websites are attracting more litigation than ever before. On 15 June 2017 a Federal Judge in California allowed a blind plaintiff to continue his lawsuit against US retailer, Hobby Lobby, on the inaccessibility of their website, overturning the defendant’s demand for the case to be dismissed. This news comes after another Judge, in Florida, found the Winn Dixie retail chain guilty of discrimination for their inaccessible website one week earlier.
In what is set to be a landmark decision with increasingly global implications, a Florida Federal Judge handed down a trial verdict of website inaccessibility finding that Winn Dixie had violated Title III of the ADA by having a website that could not be used by the legally blind plaintiff.
This was followed shortly after by a Californian District Judge who ruled that vision impaired plaintiff Sean Gorecki could continue his lawsuit against retailer Hobby Lobby on the grounds that its website was inaccessible to his screen reader. That retailer had asked the court to dismiss on various grounds, all of which were rejected by the Judge, and the case will now move forward to a hearing.
Judge John Walter of California stated that for “over 20 years, the Department Of Justice has consistently maintained that the ADA applies to private websites that meet the definition of a public accommodation” and that “Hobby Lobby had more than sufficient notice in 2010 to determine that its website must comply with the ADA.”
The Judge also declared that this particular case is a “relatively straightforward claim that Hobby Lobby failed to provide disabled individuals full and equal enjoyment of goods and services offered by its physical stores by not maintaining a fully accessible website.”
As Judge Walter’s decision was not a final judgement, but instead on the defendant’s motion to dismiss, Hobby Lobby does not have the right to appeal. Some industry insiders predict that the case will settle out of court for a large yet undisclosed sum, before it proceeds to trial. However, disability activists hope that the case progresses so that a judge can rule on the merits of this case, find for the plaintiff, and then lead to website remediation for this retailer and encourage many more to get accessible.
These two court cases are just the tip of the iceberg. The increase of lawsuits in US Federal Courts, citing ‘Title III’ violations of the Americans with Disabilities Act (ADA) shows no sign of slowing down. From 1 January to the end of April 2017 alone, a total of 2,629 lawsuits were filed.
Title III prohibits discrimination on the basis of disability in the activities of ‘places of public accommodations’, which are businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA. These include restaurants, movie theatres, schools, day care facilities, office buildings, warehouses, medical practices and more.
The Disability Discrimination Act 1992 (DDA) in Australia aims to promote equal opportunity and access for people with disability. The Act prohibits discrimination against persons with disabilities in employment, education, publicly available premises, provision of goods and services, accommodation, clubs and associations, and other contexts.
The ‘publicly available premises’ provision in the Act is similar in legal definition to Title III of the ADA in the USA. What’s more, there have been over a dozen legal actions alleging disability discrimination related to websites brought by individuals or groups this year in Australia, with all of them settling before a court hearing date was set.
The most high-profile court action of recent times undertaken in Australia was the legal case against grocery giant Coles in 2015, for the alleged inaccessibility of its online shopping service, brought against them under the provisions of the DDA. The supermarket chain settled out of court, promising to rectify its site and undertake a series of accessibility fixes suggested by the legally blind woman who brought the action. It is believed that an undisclosed sum was also paid.
Important recent US court case rulings against inaccessible websites
Next steps for website accessibility
The evidence suggests that having an inaccessible website could get you sued. Organisations whose sites have a strong connection with physical locations at which they offer services should be especially aware of the ramifications of these recent court cases in the US which correlate to certain specific parts of the DDA legislation in Australia. To mitigate the risk of a potential lawsuit, companies and Government utilities should ensure that all content meets Web Content Accessibility Guidelines (WCAG 2.0) and seek out professional web accessibility advice.
Not-for-profit digital accessibility advocates, Media Access Australia (MAA), can assist with web accessibility audits, document remediation, user experience testing, in-house training and more. Email firstname.lastname@example.org or call during business hours on (02) 9212 6242.