March 7, 2018
Recently, a federal district court in the Commonwealth of Massachusetts refused to dismiss a website accessibility lawsuit against 1-800-Flowers.com brought under Title III of the Americans with Disabilities Act (“ADA”) by Access Now on behalf of three plaintiffs who are legally blind. The plaintiffs sued in the United States District Court for the District of Massachusetts (1:17-cv-10273-IT) and alleged that the blind and visually impaired were denied equal access to sixteen (16) websites owned or operated by 1-800-Flowers.com.
How did 1-800-Flowers.Com Allegedly Violate the ADA?
1-800-Flowers.Com’s Defenses and Plaintiffs’ Allegations
Since 2015, more than 240 businesses have been the subject of an ADA website accessibility lawsuit. In the instant 1-800-Flowers.com matter, the plaintiffs alleged that their screen reader software (which allows them to navigate the Internet by converting text, buttons, and links on a website to audio) encountered barriers that prevented them from being able to access the subject websites. The plaintiffs sought a permanent injunction compelling 1-800-Flowers.com to bring its websites into compliance with the ADA, such as, by requiring compliance with the Web Content Accessibility Guidelines, Version 2.0 (“WCAG 2.0”).
1-800-Flowers.com moved to dismiss the website accessibility lawsuit filed by Access Now by arguing that voluntary standards for web accessibility do not have the force of law, particularly where the Department of Justice (“DOJ”) recently withdrew its notice of proposed rulemaking on website accessibility that would have considered whether the DOJ would adopt WCAG 2.0. 1-800-Flowers.com also argued that plaintiffs did not allege that the websites were incompatible with screen reader software, that its websites’ issues are isolated incidents of mechanical failure, and that plaintiffs lacked standing because they could not show that they were injured. Notably, 1-800-Flowers.com did not challenge whether it was a place of public accommodation.
The Court Found that Compliance with WCAG 2.0 is a Remedy
In refusing to dismiss the instant website accessibility lawsuit, the Massachusetts federal court found that plaintiffs’ request for compliance with WCAG 2.0 was one of remedy and not liability. The court found that plaintiffs sufficiently pled that the websites prevented equal access to the blind and visually impaired by: (1) not having text equivalents for every non-text element; (2) not having audio or text description of video content; and (3) the fact that the subject web pages lacked descriptive titles. In fact, the plaintiffs specifically complained that:
screen readers could not locate and read error messages;
images of items of sale did not provide written descriptions that software can read aloud; and
screen readers could not locate correct fields for payment.
Roses Are Red, Violets Are Blue, Website Accessibility Lawsuits and You
Whether you are a business owner that operates solely in the online space, or if you operate a brick-and-mortar business that includes an online presence, there exists the prospect of significant legal and/or regulatory liability for failing to meet website accessibility standards. Please note that while full compliance with WCAG 2.0 is not yet a legal requirement under the ADA, equal access is required if your website is considered a place of public accommodation. Whether a website is considered a place of public accommodation for purposes of the ADA, can be a fact and jurisdiction specific inquiry.
If you are interested in learning more about this topic, want to review your online operations and assess your risk of liability, or if you are the subject of a website accessibility lawsuit under the ADA, please e-mail us at firstname.lastname@example.org, or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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