3. Gomez v. Bang & Olufsen Am., Inc., 2017 U.S. Dist. LEXIS 15457, (S.D. Fla. Feb. 2, 2017)
The Court’s analysis included the following:
Asked another way, does my business website have to accommodate blind people? Can a blind person sue a Florida company because the business website violates the ADA?
A question that Florida businesses are beginning to deal with is whether Title III of the Americans with Disabilities Act (ADA) requires Florida companies to modify their Internet website so as to provide complete access to visually impaired individuals. Although the ADA has been law since 1990, the first time that a federal court in Florida squarely addressed this issue was in 2002, when it analyzed whether Southwest Airline’s Internet website, was a place of public accommodation as defined by the ADA.
Where a website is wholly unconnected to a physical location, Florida courts will probably hold that the website is not covered by the ADA.
Can a blind person sue your business because he can’t navigate your website?
How expensive are ADA lawsuits addressing website access?
Because people who sue Florida businesses are unable to collect monetary damages, you might conclude that these lawsuits are very rare and nothing to worry about. However, this is the new “hot” area of employment law. It can be attractive to some Florida lawyers to pursue these types of matters, even if the disabled person is not entitled to any money, because the Florida lawyer can make the company change, while also collecting attorneys’ fees.
Ideally, the reason these lawsuits exist is to obtain an injunction requiring the company to comply with website accessibility guidelines. That cost can be expensive. In the recent case of Gil v. Winn-Dixie Stores, Inc., (June 12, 2017) the evidence showed that it would cost the business $37,000 to fix its website. In addition to that cost, the company had to pay its own lawyers as well as the blind individual’s attorneys’ fees and costs, including expert fees.
Under Title III of the ADA, a customer can sue a Florida business by alleging the following:
(1) she is disabled (within the meaning of the ADA),
(2) the Florida business is a place of public accommodation,
(3) the Florida business denied the customer full and equal enjoyment of its goods, services, facilities, or privileges, and
(4) the denial was based on the customer’s disability.
When is a Florida business website covered by the ADA?
Because Florida federal courts have only addressed these types of lawsuits a handful of times, there is still some uncertainly, but a pattern is emerging:
4. Access Now, Inc. v. Southwest Airlines, Co., 227 F.2d 1312, 1321 (S.D. Fla. 2002)
5. Kidwell v. Fla. Comm'n on Human Rels., 2017 U.S. Dist. LEXIS 5828 (M.D. Fla. Jan. 17, 2017)
Can a business sit back and wait for the DOJ guidance to be issued?
No. As demonstrated above, Florida courts are not likely to be receptive to the argument that your Florida company doesn’t need to make its websites accessible until after the DOJ issues its regulations.
Because many Florida judges may be reluctant to dismiss website accessibility lawsuits early in the case, these ADA website lawsuits will likely continue into the expensive discovery phase which can force a Florida business to incur substantial costs of defense, even if the Florida company may ultimately prevail on the merits.
Further, the DOJ has taken an aggressive position on enforcement actions involving ADA website access cases.
Therefore, the Law Office of David Miklas advises covered Florida businesses to make sure their websites and apps conform to the accessibility standards, especially where litigation costs exceed the cost of compliance. The business can do this by hiring a consultant to audit the websites and apps to make sure that they comply with the law. Our firm can assist you in finding quality website consultants at reasonable rates.
Compliance with Title III of the ADA usually means a Florida business website and app must be compatible with assistive technologies such as screen reader software, large-print software, and braille output devices – tools that help blind or low-vision individuals navigate digital content.
Those Guidelines may help determine whether there may be other website modifications that would improve the accessibility of your Florida business website for disabled individuals.
As an example,
The goal should be to provide reasonable accessibility. So, there could be viable alternatives to WCAG 2.0 AA, such as reader devices, electronic braille and connections made to live persons who can assist a vision-impaired person.
What about the deaf or hearing-impaired persons? Fortunately the problems associated with video on your website are less complicated. You can embed transcripts and use closed captioning, which are much easier and less expensive ways to fix the issue rather than implementing WCAG 2.0 AA.
If your Florida company is about to launch a new website, you may want to have your website designers specifically design the website to meet the Level AA requirements of WCAG 2.0, to the extent this is achievable.
If your Florida company already has a website, you may want to collaborate with a website designer experienced in the area of website accessibility. This can be facilitated through use or an experienced Florida labor & employment law firm experienced in Title III litigation.
If your Florida business needs help with complying with the requirements of Title III of the ADA, please email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.
Finally, if you think a business owner in Florida (or a HR Director) would benefit from this article, please share it with one click.
What else can a Florida business do?
Once a business in Florida identifies website accessibility deficiencies and makes changes, the business should consider publishing a website accessibility policy statement on its website. These types of policies often provide for regular accessibility testing as a means of making sure the business website or app remains in compliance with the law.
What more should my Florida company do?
Although the Department of Justice did not provide businesses in Jacksonville, or Tampa or Orlando or Miami with clear guidance, Florida court decisions have put Florida companies on notice that these lawsuits are viable. The lawsuits are even hitting small businesses on the Treasure Coast, in Stuart, Port Saint Lucie and Vero Beach.
A Florida company may want to review the WCAG 2.0 AA Guidelines (available here)
Examples in Florida demonstrating the above pattern:
1. Gomez v. J. Lindeberg USA, LLC, 2016 U.S. Dist. LEXIS 187771 (S.D. Fla. Oct. 17, 2016)
Early settlement of ADA website lawsuits
Florida businesses should realize that, similar to FLSA lawsuits for minimum wage and overtime violations, these type of ADA website lawsuits are expensive to defend and sometimes it just makes good business sense to settle the website lawsuit early, before litigation gets too expensive. For this reason, many of these ADA website lawsuits in Florida are resolved privately through settlements. Settlements are not always cheap, as they may include the payment of the blind individual’s:
Further, the Florida company should expect to agree to:
2. Gil v. Winn-Dixie Stores, Inc., 2017 U.S. Dist. LEXIS 90204, (S.D. Fla. June 12, 2017)