Business Monday

South Florida businesses, get ready for a wave of website-accessibility lawsuits

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At this point, most South Florida businesses are aware that Title III of the Americans with Disabilities Act (ADA) requires public accommodations (e.g., retailer, bank, hotel, restaurant, hospital, theater, stadium, golf course) to ensure that their goods and services are accessible to individuals with disabilities.

But they also should be mindful that the ADA, traditionally applied to brick-and-mortar locations, has been interpreted to extend to websites of public accommodations — and the debate over mobile applications is underway.

The recent opinion in Gil v. Winn-Dixie, No. 16-23020-civ-Scola, issued in our backyard (Southern District of Florida), is the first time that a federal court has held that a public accommodation’s website was inaccessible to individuals with disabilities — because it did not meet guidance. There are no enforceable website accessibility regulations.

Regulations were anticipated from the U.S. Department of Justice in 2018 (after several delays), but they now have been placed on hold indefinitely. Furthermore, the opinion has sparked attention because it suggests that a business is responsible to ensure that a third party website (e.g., partner, vendor, sponsor) linked to its site, is likewise accessible.

Again, there are no regulations on this point, and prior statements by the DOJ do not go so far.

The absence of regulations has created uncertainty for businesses as to what constitutes an accessible website. It also has left the courts to fill the void on a case-by-case basis.

While the Winn-Dixie opinion is not binding on other courts, it will undoubtedly be considered by sister district courts in Florida whose dockets have been inundated with website accessibility lawsuits (similar to “drive-by” lawsuits which have plagued South Florida businesses for years).

For example, some may decide to follow Winn-Dixie and rely on guidance, i.e., the Web Content Accessibility Guidelines (WCAG) 2.0 Levels A and AA, as the measure of compliance with the ADA. Others may apply more stringent guidelines contained in WCAG, or look to another set of standards altogether.

Regardless, South Florida businesses should be prepared as website accessibility works its way through the courts.

Here are some tips:

▪ Audit your website to determine whether accessibility issues exist and, if so, how to fix them. For example, check whether your website is compatible with screen readers, contains closed captions on videos, and allows for keyboard navigation.

▪ Make sure your IT team or outside vendor considers accessibility in the design phase and is familiar with website accessibility standards, notably, WCAG 2.0.

▪ Consider contractual provisions with third-party vendors, such as indemnification.

▪ Review your mobile applications, and consider implementing appropriate accessibility features.

▪ Work with counsel to develop a compliance plan and policy.

A proactive plan now may provide a good defense in the future.

Carol C. Lumpkin and Stephanie N. Moot are partners at K&L Gates’ Miami office. www.klgates.com.

▪ The views in this article are the writer’s and do not necessarily reflect those of The Miami Herald and Business Monday, for which this article was written.

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