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Gunster's technology & emerging companies law practice

Virtually all business owners and executives are familiar with the Americans with Disabilities Act (the “ADA”). Title III of the ADA requires many businesses to ensure that their goods, services, privileges and other items are accessible to disabled individuals. Title III compliance requirements on the brick and mortar level have become standard operating procedure for many businesses.

Many business owners do not realize, however, that Title III protections also apply to their businesses’ websites.

In an important recent federal court decision, the court focused on a business’s obligations to comply with Title III with regard to its website. This decision is significant because it may result in an increased number of legal actions under the ADA.

In Gil v. Winn Dixie Stores Inc., the District Court for the Southern District of Florida held that Winn Dixie’s website was inaccessible to a disabled individual under Title III. While the application of Title III to websites is not new, we believe that this is the first case where a federal court actually confirmed that a company’s website was inaccessible under Title III. The plaintiff, who was visually impaired, alleged that Winn Dixie’s website did not allow him to see discount coupons and other items, and the court agreed. Based on the court’s language in this case, we believe that federal courts will now take a hard line in assessing businesses’ websites under the ADA. The Gil decision is strong precedent in the Southern District of Florida and we believe it may influence other federal courts throughout Florida and the Southeastern United States.

The risk to South Florida businesses is that this broad application of the ADA and Title III will make it relatively easy for plaintiffs’ lawyers to bring lawsuits regarding noncompliant websites. Because so many businesses are unaware of their obligations to ensure their websites comply with the ADA, many South Florida businesses may be subject to attack by these lawsuits.

This is especially true since virtually all businesses now have websites. While the ADA does not provide damages to plaintiffs, a court can order businesses to take the steps required to make the website compliant. A court can also award attorney’s fees to the plaintiff’s lawyer, which could be substantial. It is the recovery of attorneys’ fees that will induce the plaintiff’s bar to bring these cases.

Unfortunately there are no regulations or other official sources that offer concrete guidance on compliance in this area. Businesses and lawyers have long anticipated these regulations but they do not appear to be forthcoming any time soon. Absent such regulations, we believe that the Web Content Accessibility Guidelines 2.0 (the “WCAG”) may provide the best guidance regarding website and mobile app compliance in these situations. The WCAG were developed to provide some form of guidance in this area. The Winn Dixie court gave credence to the WCAG and identified the WCAG as the “industry standard for [website] accessibility”.

So what can business owners and executives do?

Here are six thoughts and suggestions:

Know your situation

Quickly get a true idea of how your website complies with the WCAG and Title III. Read the Winn Dixie case, as it contains a good summary of relevant issues and items. Become familiar with the WCAG and use this case and the WCAG to evaluate your current position.

Have the right expertise available

Ensure that your IT staff, your outside vendors and your legal counsel know the ADA in the website context and the WCAG. Many people understand the ADA in the brick and mortar context, but far fewer understand the need for compliant websites. This is obviously critical if you are in the process of developing a new website, but you also may need to do an overhaul if your site is non-compliant.

Investigate insurance protection

Cyber insurance has become a valuable risk management tool, and coverage is available for a wide range of IT-related situations. Call your insurance professional and discuss these website accessibility items and whether coverage is available. This may be one of the most effective ways to protect your company.

Obtain contractual protection

Get strong representations and warranties and indemnification protection from third party vendors in connection with any work that they do on your site and your mobile apps. Have them represent that their work product is compliant with the WCAG and the ADA, and also require them to indemnify you for any damages that your business incurs in this context. If you get pushback or if they don’t seem to be aware of these issues, consider another vendor. Be aware, however, that there are potential legal and practical problems with the use of this contractual protection, and it should be only one possible component of your overall strategy in this area.

Check your mobile apps

Your mobile apps may also be required to be compliant.

Consult your lawyer

Work with qualified legal counsel at all stages of the website and mobile app compliance process. Develop an effective strategic plan in case you are sued under the ADA in this area.

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This client alert is a joint project by Gunster’s technology and emerging companies and labor and employment law practice groups. Our ability to seamlessly combine our competence areas allows us to quickly add significant value to our clients’ situations.

Please reach out to us if you have any questions on the ADA, Title III, the WCAG or any other technology or labor and employment topic.

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

About Gunster

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 13 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach, Winter Park, and its headquarters in West Palm Beach. With more than 180 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.


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