Failure to Allege Brick-And-Mortar Hurdle Dooms Website Access Suit


A federal judge has dismissed a lawsuit alleging that an audio equipment company’s website violated a blind person's civil rights.

Plaintiff Andres Gomez alleged that Bang & Olufsen America Inc.’s website contained various accessibility barriers and didn’t provide him with the same online shopping experience as non-disabled consumers. Gomez alleged violations of Title III of the Americans with Disabilities Act, 42 U.S.C. §12182(a), which prohibits discrimination on the basis of disability in the full and equal enjoyment of public accommodations.

Judge Joan A. Lenard of the U.S. District Court for the Southern District of Florida ruled that Gomez failed to show that the lack of website access hindered his use of Bang & Olufsen’s physical locations.

“The ADA does not require places of public accommodations to create full-service websites for disabled persons,” the court said.  “All the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store.”

Title III of the ADA doesn't specifically address access to websites, and courts have split on whether websites qualify as places of public accommodation. The Department of Justice has yet to issue regulations addressing the accessibility of business websites under the law.

Scott R. Dinin, attorney for Gomez whose practice focuses on ADA website accessibility, told Bloomberg BNA Feb. 7 that the ruling was instructive in clarifying which allegations a plaintiff must make to sustain a website accessibility claim.

Dinin said that Bang & Olufsen failed to provide visually-impaired consumers with access to effective communication about the products sold at its physical locations. The company doesn’t give them the ability to educate themselves on the options before going to the store to make a purchase, he said.

Dinin said, however, that the complaint didn’t properly allege that Bang and Olufsen’s website interfered with Gomez doing business at the physical store.  “We are reviewing our options, and it’s likely we are going to be able to refile the case,” Dinin said.