Banks Join Legal Fight Over Website Access for Visually Impaired

By Chris Bruce

A federal appeals court is weighing a question that’s spawned a business alliance ranging from banks to restaurants — must a company’s website be accessible to visually impaired consumers?

The case tests the ability of disabled individuals to access goods and services in the online world against what the American Bankers Association and other groups say are uncertain and impossible-to-apply expectations on how to make websites accessible ( Gil v. Winn-Dixie Stores, Inc. , 11th Cir., 17-cv-13467, brief filed 10/17/17 ).

The case, seen by some as a potential candidate for consideration by the U.S. Supreme Court, centers on an Americans with Disabilities Act (ADA) lawsuit by Juan Carlos Gil, a legally blind customer, against Winn-Dixie Stores Inc.

Earlier this year, a district court ruled for Gil, saying the website of Winn-Dixie, a subsidiary of Jacksonville-based Southeastern Grocers with almost 500 grocery stores in the southeastern U.S., denied Gil full and equal access to goods and services of a “place of public accommodation” under the ADA. The court ordered Winn-Dixie to make its website accessible to customers who rely on special software to use websites.

Winn-Dixie appealed to the U.S. Court of Appeals for the Eleventh Circuit earlier this year, and in October, the banking industry and a dozen other business groups lent their support. In a brief, the American Bankers Association said Congress never meant for Title III to cover virtual spaces. “Websites are not located in any particular physical place or facility, and are thus not places of public accommodation under Title III,” the brief said.

One of a Kind

The case is the first of its kind that’s gone to trial, heard evidence and resulted in a decision, according to Thomas B. Alleman, a member in the Dallas offices of Dykema who leads the firm’s insurance group.

“That in and of itself makes it unique, but it’s also a part of what appears to be an ongoing circuit split over whether the ADA should apply to websites regardless of how heavily integrated they’re integrated into the services provided,” Alleman told Bloomberg Law.

He said the case might eventually make its way to the U.S. Supreme Court, since the federal appeals courts are split on how to read Title III, and the case has a well-developed record. .

“I suspect that because there’s a developed record here that the defense side views this as the case to take to a now-full Supreme Court for a ruling on what the particular language in Title III means,” Alleman said.

Potential Overreaching

Although other courts have issued similar rulings, those “overreaching courts” have yet to cite clearly defined rules or other guidelines on website accessibility, according to the American Bankers Association and its briefing partners. That makes it impossible for businesses to know how to understand or meet whatever obligations they have under Title III, according to the brief.

“Businesses can try — and many have tried — in good faith to modify their websites to allow access to the disabled, but the lack of definitive regulations and agency guidance means there is no safe haven for compliance,” the brief said.

The American Bankers Association didn’t respond to a request for comment on the case. Winn-Dixie also didn’t respond to a request for comment.

Professor Arlene S. Kanter, director of the College of Law Disability Law and Policy Program at Syracuse University School of Law, said the law “is pretty clear that a website is required to be accessible, especially when it’s connected to a store.”

“Businesses should think about not spending money to fight cases like this and instead think about spending it to make their businesses more accessible to new potential customers, which would be in their interest,” Kanter told Bloomberg Law.

The more unsettled question is what happens if someone is operating a purely Internet-only business, and whether that needs to be accessible, according Michael Waterstone, dean of Loyola Law School in Los Angeles. “That’s an area where there’s less clarity under the law,” Waterstone told Bloomberg Law.

Bank Interest

Banks themselves are among the companies facing similar suits. Among others, Southwest Bank, based in Fort Worth, was sued earlier this year in the U.S. District Court for the Northern District of Texas. The suit, which said the bank’s website was not accessible to blind or visually impaired customers, was dismissed in February after Southwest said it reached a settlement without disclosing its terms.

The suit against Southwest Bank coincided with an acquisition of the bank. The plaintiff in the ADA suit against Southwest filed his complaint on Jan. 23, 2017, the same day Simmons First National Bancorporation of Pine Bluff, Ark., announced plans to acquire First Texas BHC, Inc., the parent company of Southwest Bank. Simmons First National Oct. 19 said it has now completed the transaction.

Title III Coverage

The banking industry group says a growing number of cases in which courts have held that websites are covered by Title III has created “significant confusion” about the law’s reach and what’s required of businesses.

However, in this case, the district court didn’t go as far as it might have. The June 2017, ruling by Judge Robert N. Scola Jr., of the U.S. District Court for the Southern District of Florida didn’t say the Winn-Dixie website is a public accommodation in itself. Instead, he said, the website is covered under Title III because of its close connection to Winn-Dixie physical stores. Although the website is “heavily integrated with Winn-Dixie’s physical store locations and operates as a gateway to the physical store locations,” Scola said, it’s not accessible to Gil and others who need screen reader software. He issued a final order in July, which sparked the appeal by Winn-Dixie.

Far From Settled?

In its Oct. 10 opening brief, Winn-Dixie said the district court’s ruling creates new law and standards, citing what it called a lack of “any” statutory or regulatory guidance.

The banking group’s brief also took up that theme. Among other points, it said Justice Department regulations that implement the ADA don’t include any provisions governing the accessibility of websites or their content. “Given that no regulations currently impose clearly-defined obligations regarding website accessibility, businesses are simply not on notice of what Title III may require of them,” the brief said.

To contact the reporter on this story: Chris Bruce in Washington at cbruce@bna.com

To contact the editor responsible for this story: Michael Ferullo at MFerullo@bna.com

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