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Does the Auxiliary Aids Standard Apply To Websites?
After years of demand letters, complaints and settlements, a website accessibility lawsuit under Title III of the Americans with Disabilities Act, 42 U.S.C. §§12181-12189 (ADA or Title III), finally went to trial in the United States District Court for the Southern District of Florida. See, Gil v. Winn-Dixie Stores, Inc., Case No. 1:16-cv-23020-RNS (S.D. Fla. June 12, 2017). At the conclusion of the two-day court trial conducted in mid-June, the district court entered judgment against Winn-Dixie Stores, the website's owner and operator, requiring Winn-Dixie to, among other things, ensure that its website complies with the World Wide Web Consortium's Website Content Accessibility Guidelines, version 2.0 (WCAG 2.0). The case is remarkable not just because it is the first of its kind to go to trial, but also because the court's opinion does not consider whether a website owner can employ alternatives other than WCAG 2.0 to make website content “accessible.”
The ADA, the Auxiliary Aids Standard and Websites
Title III prohibits places of public accommodation from discriminating against individuals with disabilities “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation … .” 42 U.S.C. §12182(a); 28 C.F.R. §36.201(a). Over the past few decades, website owners, members of the disabled community and scholars have debated whether Title III can and should be applied to the Internet and websites, which did not exist in their current forms at the time the ADA was passed. Federal and state courts that have considered this issue have reached starkly different conclusions — some finding that Title III only applies to physical, “brick-and-mortar” facilities, and cannot be applied to non-physical places like Internet websites; other courts reach the precise opposite conclusion, holding that Title III applies to any public accommodation, regardless of whether it exists in physical form, or on the Web. Compare, e.g., Cullen v. Netflix, Inc., 600 Fed. App'x 508 (9th Cir. April 1, 2015); Earll v. Ebay, Inc., 599 Fed. App'x 695 (9th Cir. April 1, 2015) (stating that Title III does not apply to websites that do not have a nexus to a physical place), withNat'l Fed'n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015); Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) (stating that Title III applies to Internet websites regardless of whether they have a nexus to a physical place).
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