The lawsuit that will change web accessibility

This month, a Federal judge ruled in favor of a Florida man with blindness who sued the supermarket chain Winn Dixie for violating the Americans with Disability Act (ADA) on its website.

I came across this story a couple of weeks ago, and I’m surprised at how little play it’s gotten in the web design press, given how significant it could be. Although there have been hundreds of cases filed against retailers and corporations since 2015 by disabled individuals, the Winn Dixie lawsuit is the first of its kind to have gone to trial.

According to the court, Winn Dixie is responsible for providing the same functionality on its website for all users, including those with disabilities.

In his decision for Gil v. Winn Dixie, US District Court Judge Robert Scola, Jr. determined that Winn Dixie was in violation of Title III of the Americans with Disability Act — which handles physical accommodations like stores, restaurants, movie theaters, and other places of business — because the website is so tightly integrated with the chain’s nearly 600 physical locations.

Like many other supermarket chains, Winn Dixie offers in-store pharmacies, coupons, and loyalty programs and provides support for these services through its website.

Like many other supermarket chains, Winn Dixie offers in-store pharmacies, coupons, and loyalty programs and provides support for these services through its website. Persons with blindness will often favor using these services online as they require less dependence on busy store staff, who are often annoyed by requests for help. Crowded in-store pharmacies pose additional privacy issues, as a blind person has no way of knowing who is overhearing their conversation with the pharmacist.

Juan Carlos Gil, the plaintiff, had heard ads on TV for the Winn Dixie website where he could access refill prescriptions and access coupons online. So he tried using the website with his screen reader, an application that reads the text that is displayed on the computer screen with a speech synthesizer or a braille display. He found that 90% of the tabs on the site didn’t work, leaving him unable to access most of the Winn Dixie website’s functionality.

What types of websites are liable?

To date, the courts have been split over whether websites in general should be treated as “public accommodations” under Title III. In this case, the judge felt that the website’s heavy integration with the services offered by Winn Dixie’s brick-and-mortar stores allowed him to decide this case without making a broader ruling on all websites in general. For those of us who develop other types of websites, we have dodged a major bullet — for now.

For retailers, hotels, and any other organization with a public physical presence, this case reinforces their legal responsibility to provide websites that are “accessible by individuals with disabilities who use computers, laptops, tablets and smart phones.”

If you build an e-commerce site, you should take special care.

If you’re like me, you’re happy to not re-invent the wheel when it comes to building applications like shopping carts, reservations systems. It’s so much more feasible to tap into the services of third-party vendors. However, now you should be extra careful when planning your next web site.

In Gil v. Winn Dixie, the court defined Winn Dixie’s responsibility to include content from third-party vendors who interface with the site, such as Google and American Express. In the future, website owners like Winn Dixie will not only need to ensure that their own content is accessible, but they will also be responsible for all third party vendors. The burden will now be on the website owners to select only those vendors that provide fully accessible content.

How should you test for accessibility?

Screen capture of WebAIM’s WAVE extension

The easiest way to test to see if your site or your vendors’ sites are accessible is to download the WAVE browser extension from WebAIM. Once installed, the extension will flag any problems with accessibility and sort them by priority into errors and alerts. At the very least, you should consider errors marked in red as potential sources for liability, and try to address all errors and alerts while you’re building your site.

While automated accessibility tools like WAVE are useful for getting a quick and dirty look at your site’s accessibility, you can’t get a real understanding unless you try your site out with a screen reader of some sort. The old standard is JAWS, which has been around almost as long as the web and comes with a price tag of $895. NVDA is a newer open-source alternative, and a better choice if you’re just planning on doing QA. Of course, if installing and running screen readers for testing is too daunting, there is an emerging industry of accessibility consultants who can test your site for you.

In general site building, most websites are tested for compliance on major browsers like Google Chrome, Internet Explorer, Firefox, and Safari. Other lesser-used browsers can be treated as edge cases if they don’t work properly. Thankfully, you should be able to apply this logic to major screen readers as well in the future:

If a company’s website is compatible with a main screen reader program such as NVDA or JAWS and is not compatible with a lesser used screen reader program, the burden is on the program, not the company to resolve the problem.
- Judge Robert Scola, Jr.

What’s the standard for compliance?

The US Department of Justice has been promising to provide guidelines for web accessibility since 2010, and “the department has now said it plans to publish those in 2018,” according to Legal NewsLine.

In the interim, the web publishing industry and the courts have been using the international standards set out in the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA) as the yardstick for compliance. Gil v. Winn Dixie makes it clear that WCAG 2.0 is the standard for compliance, at least for now.

What’s the cost of compliance?

Under Title III, a plaintiff is not entitled to damages, but is typically awarded attorney’s fees, which can total millions of dollars — as was the case in National Federation of the Blind v. Target Corp. Had this been a class-action suit, the judge could have ordered that an additional relief fund be set up, which could run several million dollars in addition.

Winn Dixie claims that the cost of fixing the website will be $250,000, which is a very small fraction of the cost of the site’s redesign. From my own experience that estimate seems quite high: most of the issues in the complaint are likely corrected by fixing templates and scripts used globally on the website. Even with a generous site audit and QA process, the bill for remediation should likely be half of Winn Dixie’s figure.

Regardless of the exact cost, it’s far less costly to test for accessibility and invest in remedies before the fact than it is to risk a lawsuit.