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Another Court Finds That Accessibility Rules Apply to Retail Websites

On September 14, 2017 by Schnader in Labor and Employment

By Karen Baillie

Last month we told you that a court in Florida had ordered the Winn-Dixie supermarket chain to make its websites accessible to persons with vision impairments by following the Web Content Accessibility Guidelines 2.0 standards (WCAG 2.0).  This month, another court has weighed in.  In an opinion published on September 6, 2017 (but issued earlier on July 31, 2017), Judge Jack B. Weinstein of the Southern District of New York ruled that a retail website was a place of public accommodation under the Americans with Disabilities Act (as well as under state and local law) and therefore the owner the website had to take “the steps necessary to ensure that the blind have full and equal enjoyment of its website – provided that taking such steps would not impose an undue burden on Blick or fundamentally alter the website.”  Andrews v. Blick Art Materials, LLC, 17-CV-767, NYLJ 1202797331595, at *15 (EDNY, Decided July 31, 2017).

Judge Weinstein rejected Blick’s argument that web-only services need not be accessible.  Rather, the court held that a website could be a place of public accommodation and that the purpose of the ADA is to ensure equal access to persons with disabilities.  The court thought it would be “absurd” to conclude otherwise.  “A rigid adherence to a physical nexus requirement leaves potholes of discrimination in what would otherwise be a smooth road to integration.  It would be perverse to give such an interpretation to a statute intended to comprehensively remedy discrimination.” Id. at *23.

Likewise, the court also rejected the argument that the Department of Justice’s failure to issue specific rules for website accessibility for public accommodations was no excuse for delay:  “The plaintiff has made a prima facie case that Blick is violating his rights under the ADA.  The court will not delay in adjudicating his claim on the off-chance the DOJ promptly issues regulations it has contemplated issuing for seven years but has yet to make significant progress on.”  Id. at *32.

Blick also argued that because there were no rules it was impossible to comply.  Judge Weinstein acknowledged that the lack of specific rules did lead to uncertainty about compliance, but he pointed out that the ADA is meant to be flexible, with lots of gray area:

“But the anti-discrimination provisions the defendant is accused of violating are not simple checklists of clear-cut rules- they are standards that are meant to be applied contextually and flexibly.  The ‘gray’ the defendant complains of is a feature of the Act.

The ADA requires public accommodations to provide ‘reasonable modifications’ or ‘auxiliary aids or services’ to disabled individuals to ensure them the ‘full and equal enjoyment’ of the goods, services, and accommodations places of public accommodation provide; public accommodations do not discriminate if the modifications needed are unreasonable or would ‘fundamentally alter the nature’ of the good, service or accommodation; they also do not discriminate if the provision of auxiliary aids or services would be ‘unduly burdensome’…  Id. at *33-34.

This decision reminds us that advocacy groups and others are filing lawsuits to enforce website accessibility.  Businesses that maintain websites are advised to discuss universal accessibility with their website designers so that they are prepared to address these issues.