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Are You at Legal Risk… Because of Winn-Dixie? Q&A and Webinar Resources

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Written by: Kristin Heineman

Thank you to everyone who attended Tuesday’s webinar discussing the landmark case Gil v. Winn-Dixie Stores, Inc., Are You at Legal Risk… Because of Winn-Dixie? Due to the number of thoughtful questions we received, we were unable to answer everything during the webinar, so we’ve provided additional answers below. For more information on this topic, you can access the webinar slides, transcript, and recorded presentation here: Because of Winn-Dixie Webinar Resources.

Webinar Q&A

Q: Do you see Winn‑Dixie having any impact on ADA Title II?

A: For those unfamiliar with it, Title II covers state and local government websites. Proposed regulations under Title II have also been delayed, and are unlikely to be forthcoming in the near future, so we will likely also see increased litigation under Title II. While the legal rules under Title II and Title III are different, courts will likely consider many of the same questions as were at issue in Winn-Dixie.

Q: As a university, we are extrapolating that documents offered through our online system also need to be accessible even though the documents may not be natively web-based. Are we on track with that?

A: Yes. In addition to traditional web pages and mobile apps, other documents offered through your website will in most cases also need to be accessible or have accessible alternatives. This includes, for instance, PDFs hosted on a course’s Blackboard site.

For more information about the specific digital accessibility concerns of educational institutions, check out our upcoming webinar Don’t Fear the OCR: Digital Accessibility for Education.

Q: Is the provider of video hosting services like Vimeo, YouTube, etc., required to make videos closed captioned?

A: While this question has not to our knowledge been directly addressed in court decisions or regulations, multiple companies—including Netflix and Hulu—have reached settlements that required them to provide closed captioning on their content, in both English and Spanish. We anticipate that it may be some time before there is the expectation to provide closed captioning for everything and there may be a distinction drawn between pre-recorded and live video, but organizations that focus on video streaming are more likely to the object of demand letters and lawsuits in the short term.

Q: Web accessible issues seem to be interpreted differently from state to state. Would you see a big change for California?

A: Because the ADA is a federal lawsuit, we do not for the most part anticipate significant differences from state-to-state. That said, there are some issues where federal appellate courts are split on the interpretation of the ADA, even within the same jurisdiction. This includes the question of whether stand-alone websites constitute places of public accommodation under Title III. But, as we saw in the Winn-Dixie decision, courts can in most cases easily avoid this question by finding a connection between the website and a physical store somewhere.

Some states, however, have specific civil rights legislation that ties into the ADA. In California, the Unruh Civil Rights Act offers additional protections for persons with disabilities. In 2015, a California state court ruled a luggage company was in violation of the Unruh Act, in addition to the ADA.

Q: What is the pulse check for mobile apps?

A: Mobile apps tend to be treated the same as websites and other web content, so organizations need to be aware of accessibility requirements for mobile apps. However, making a mobile app accessible may involve a slightly different process, because they use built-in resources such as VoiceOver rather than JAWS. Note that there may also be contractual requirements to make apps accessible in order to have them made available on digital storefronts that go above-and-beyond legal requirements under Title III.

The W3C Web Accessibility Initiative also provides resources on mobile app development.

Q: If your website is compliant but you link to resources to another website that is not compliant, are you liable to providing the link to the inaccessible website?

A: If your organization has no control over the third-party content, then you are typically under no obligation to ensure it is accessible. But, if your organization has power (such as through a contractual relationship) to tell the owner of the content what to include or how it should be formatted, then you could be responsible for ensuring it is accessible. Simply linking to a third-party site, however, would not ordinarily raise liability absent other considerations.

Q: I thought WCAG 2.0 was integrated into the Section 508 refresh. Does that not apply to Title III?

A: Section 508 of the Rehabilitation Act is a law that covers federal government websites and the websites of some government contractors, and more regulations apply than apply to Title III of the ADA, which covers places of public accommodation, even if they are not government entities/contractors. Although the laws have similar goals, they apply to different sectors and the specific rules are different.

For more on Section 508, see our whitepaper, Are You Ready for the Section 508 Refresh?

Q: How much time was Winn-Dixie given to get their website accessible?

A: Winn-Dixie was given until December 1, 2017, or just over five months, to make its website and mobile app accessible to users with disabilities. After that, Winn-Dixie was also required to develop a web accessibility policy (by January 1, 2018) and perform quarterly audits to verify compliance (beginning by March 1, 2018).

Q: Do you think that the Winn‑Dixie ruling will drive the cadence that companies will be required to audit for accessibility?

A: While there is no general requirement that private-sector organizations in the United States audit their website for compliance with the ADA, auditing remains in most cases the best way of determining whether web content is deficient.

That said, the Court’s order in the Winn-Dixie case did require quarterly audits to verify compliance. We may see courts increasingly rely on auditing as part of broader remedial orders.

Q: There was a quick mention that accessibility may be required for iOS apps as a result of an Apple agreement. Could you go into more details on which agreement this is, and what is the exact language regarding accessibility (does it reference standards or Apple’s own guidelines)? Such requirements may provide both an incentive and potential clarity for teams working on iOS apps.

A: Accessibility does not appear to be required per se under the current Apple Developer Agreement, but it may be a factor when deciding to approve apps for the iOS Store. In addition, Apple provides an Accessibility Programming Guide to help developers ensure apps are compatible with VoiceOver.

Interestingly, the plaintiff in the Domino’s Pizza case raised Domino’s failure to meet Apple’s accessibility guidelines as evidence that the mobile app violated ADA Title III. The Court rejected this claim, refusing to read Apple’s independent standards into the ADA. It is not clear, however, if other courts would rule in the same way.

Q: What about Android? Do the Android developer agreements mention accessibility? If there is, does it mention accessibility?

A: Neither the Android developer agreements nor the Google Play Developer Distribution Agreement specifically reference accessibility. Like Apple, however, Google does provide an Accessibility Guide for Android developers.

Q: What defines accessibility?

A: Under WCAG 2.0, accessibility is assessed under four principles; web content must be: perceivable, operable, understandable, and robust. Title III, on the other hand, is less concerned with technical standards and whether the content can actually be used by the person with disabilities.

Q: Did they decide what level of WCAG 2.0 had to be met (A, AA, AAA)?

A: The court in Winn-Dixie did not address whether the website needed to comply with Level A, AA, or AAA success criteria. This was most likely an oversite due to lack of technical expertise.

Q: Are websites the only targets? Certain vendors seem not interested in offering product in accessible formats. Can they be pursued or compelled?

A: Because Title III covers services of places of public accommodation, its reach extends well beyond websites. That said, however, whether it would apply to a particular vendor would depend on whether it was itself a place of public accommodation.

Q: If a vendor has web-based software that mimics your website’s layout, are you responsible for that website being accessible?

A: This question has not yet been answered directly. Other countries, however, have looked to whether the organization has control over the substance and layout of third-party content. If you do, you might be held liable if it is not accessible.

Q: When trying to make documents or resources accessible that may not be natively accessible, how is copyright affected?

A: Depending on the circumstances, making accessible versions of resources may fall under the fair use exception to copyright, especially if the material is being made available for educational purposes.

Q: We have a lot of debate at my institution of higher education regarding being ADA compliant and adhering to Section 508 Refresh in terms of the January 2018 deadline and whether this applies to an IHE’s public content as well as LMS. I would assume we are a public accommodation – is this correct?

A: Private educational institutions are treated as places of public accommodation under Title III. Public educational institutions are covered separately under Title II.

Q: Do websites that offer online ordering with home delivery have to be digital accessible?

A: If the website is associated with physical retail stores, it will in most cases be considered a place of public accommodation. Appellate courts are split on whether standalone websites providing the same services as places of public accommodation are covered under Title III. If your organization operates nationally, however, it is safest to assume you could be covered by Title III requirements.

Q: If you have a small home-based business, does your website still need to be accessible, especially if you offer contact or product order forms?

A: This is a difficult question to answer as there is no specific requirement that a private business is accessible. However, making your website accessible is the best way to avoid the lawsuit. The question is how much risk you are willing to take on? If your business is small, the odds of receiving a demand letter is relatively small.

If you have no physical storefront, there’s a good chance that a court would find that your website does not need to be accessible, but courts are split on that issue.

Q: Universities could be said to offer online courses on a restricted website. Does this case inform accessibility in online learning situations?

A: Though Winn-Dixie does not specifically address online courses, there are other laws that apply to educational institutions. Title II of the ADA covers State and Local Governments, including universities, which requires universities to make accommodations for students with disabilities. Section 504 of the Rehabilitation Act also applies to all public entities that receive federal aid, including universities.

In a similar vein to Title III of the ADA, updates to Title II to bring it in line with current technology have stalled out. However, even though the ADA does not specifically require digital accessibility, the Department of Education has consistently held that educational websites need to be accessible.

Q: It says that the Section 508 Refresh applies to “public-facing content as well as nine categories of non-public facing content that communicates official business.” If Federal government employees use software / web applications to do their jobs, do these applications need to be compliant?  

A: Although purely internal documents do not need to be accessible under Section 508 of the Rehabilitation Act, federal employees are covered by Section 501 of the same law. Section 501 prohibits discrimination against federal employees with disabilities, and requires that their needs are met. Although there are only a small handful of cases on this issue, courts have regularly found in favor of the employee in lawsuits involving inaccessible software.

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