Is Your Website Accessible? If Not, You Could Be Violating the ADA

Do you recognize the name Juan Carlos Gil? Well, if you’ve built a WordPress site that provides services or sells products to the general public, then you should probably take a moment or two to acquaint yourself with his story.

On June 13, 2017, U.S. District Judge Robert Scola of Florida ruled in favor of Mr. Gil in the case Juan Carlos Gil v. Winn-Dixie Stores, Inc. (case no. 16-23020). It was determined that the Winn-Dixie grocery chain was in violation of the Americans with Disabilities Act (ADA).

The interesting thing about this case is that it had absolutely nothing to do with their physical stores. On the contrary, the issue was with their website, which prevented Mr. Gil “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” that in-store shoppers received. Mr. Gil is legally blind and also has cerebral palsy, and so he relies on screen readers in order to shop online.

Perhaps even more noteworthy about this trial is the fact that it’s the first-of-its-kind and could spell big changes for the web—and your work as a web developer. Mr. Gil has filed almost 70 lawsuits against sites he believes to be in violation of the ADA. He certainly won’t be the last person to do so either.

Here’s what you need to know about the trial’s verdict, what it means for you as a web developer, and what you can do to keep your WordPress sites on the right side of the ADA.

The Winn-Dixie Website: Why Did Accessibility Matter?

Okay, so here’s the lowdown on Winn-Dixie and Mr. Gil’s court battle:

Winn-Dixie is a chain of grocery stores in the southeastern part of the United States. Currently, they have about 500 stores in total.

Mr. Gil, having shopped at Winn-Dixie previously, wanted to be able to make use of the site for a number of purposes. Specifically, he was interested in using the store locator functionality, coupons, and pharmacy features. However, he found that the JAWS screen reader tool was unable to access a number of those features on the site. In addition, he reported having issues opening about 90% of the tabs on the website. Experts weighed in during the trial and confirmed those same inaccessibility issues.

Now, despite having undergone a $7 million website revamp in the previous year, the designers of the Winn-Dixie site had not considered accessibility at the time. When it came time to argue Mr. Gil’s statement, they chose not to dispute the lack in accessibility. Instead, they focused on the argument that their site was not a place of public accommodation.

This is where the case really gets interesting.

The ADA’s Title III regulations stipulate the following:

“Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards.”

Although a website does not have a physical structure that would make it eligible for this law, Judge Scola ruled that it was still in violation of Title III because of the close connection between Winn-Dixie’s physical stores and the website. Since the website served as a gateway to and companion to the physical shopping experience, Scola believed the website to be a “place of public accommodation.”

Why Is This Case a Big Deal for Web Developers?

Upon finding Winn-Dixie in the wrong, the judge ruled the following:

  • Winn-Dixie now faces a three-year injunction. During that time, they need to immediately bring their site up to speed with WCAG 2.0 criteria.
  • Mandatory updates over this three-year period will also be required in order to keep their site in compliance.
  • Although they do not owe Mr. Gil any sort of settlement fee outside of attorneys’ costs, they estimate the cost of the website accessibility fix could be upwards of $250,000.
  • Because Winn-Dixie has a number of third parties that manage and use various parts of their site, those entities are now also required to be in compliance with WCAG 2.0.
  • Winn-Dixie must place an accessibility policy on their website, notifying customers of their ability to cater to individuals with disabilities.
  • Finally, all employees responsible for working on the website will have to undergo accessibility training.

As you can see, the ramifications of having a website in violation of the ADA are huge. And because this is the first federal case related to web accessibility that went to trial and won, web developers will really need to watch their backs now.

If Mr. Gil has launched 70 lawsuits of his own, this may only be the start of a wave of ADA cases brought against website owners. This means a few things for you as a web developer:

  • Your process will need to change—at least for websites with similar “places of public accommodation” characteristics.
  • You’ll likely have to spend more time on each website you build to ensure that it’s WCAG 2.0 compliant.
  • And, fortunately, you could see a spike in redesign requests as former clients proactively seek out your help for getting their sites up to speed. (Or you can use this as an opportunity to pitch a redesign to them.)

I think what this lawsuit and ruling really demonstrates is how large of a role websites actually play in the retail experience. Regardless of whether or not your sites have physical store counterparts, inaccessibility will no longer be tolerated as it becomes the norm to provide a universally friendly landscape for all consumers.

12 Tips to Make Your WordPress Site Accessible

Now that a company as well-known as Winn-Dixie has caught the attention of consumers and the courts, who do you think will be next?

Seeing as how the ADA clearly defined which businesses they target with the Title III regulation, the corresponding websites for those types of establishments would be the first place to start. Though I would argue that any website that provides services or sells products online should aim to be fully accessible.

In terms of what you can actually do to make your sites accessible, there’s obviously a lot to think about. For starters, acquaint yourself with WCAG 2.0. That is now the de facto standard everyone should follow.

Here are some other best practices to keep in mind when designing an accessible website:

  1. Use text alternatives and descriptions for images, video, and other media.
  2. Used closed captioning for video.
  3. Make your site keyboard-friendly so a mouse or finger is not required to move around it.
  4. Simplify the navigation. You may also want to think about adding breadcrumbs.
  5. Create a consistent layout.
  6. Design with sharp color contrasts between the text and background.
  7. Use symbols to clarify the purpose of key elements if color blindness or other visual impairments prevent color signals from directing users to where you want them to go.
  8. Use header tags for clearer organization of text.
  9. Use clear labels for all form fields.
  10. Include text resizing capabilities.
  11. Enable voice search.
  12. Allow users to disable JavaScript.

WPMU DEV’s WP Checkup tool allows you to do a quick scan of your website’s accessibility and get recommendations for improvements. Just scroll down to the SEO section of the scan recommendations to find out more.

For more information on how to get your site up to speed in terms of accessibility (since there’s always more to be done), I’d recommend you also check out these other resources.

Web Accessibility Guides

Web Accessibility Tutorials

Information on Web Accessibility for Your Business

Wrapping Up

The Winn-Dixie trial and ruling may be the first of its kind, but it certainly won’t be the last we hear about inaccessible websites being penalized for not creating an amenable and universally friendly environment for all visitors. The ADA has issued its Title III guidelines for a reason, and with websites now playing a large part in what they refer to as “public accommodation,” it’s up to you as a developer to ensure your websites are in compliance with those regulations.

It may take time to get all your sites up to speed, which is why it’s important to always keep in mind the end goal here. Everything you do when building websites is ultimately to create a positive experience for all users—for your clients as well as their visitors. Creating a fully accessible website will ensure that no one gets left behind and that you’ve maximized every website’s potential to generate leads.

Brenda Barron
Over to you: Is this the first time you’ve seen pushback against a site’s lack of accessibility? If so, are you surprised by the court’s ruling in favor of the plaintiff Mr. Gil?

16 Responses

  • Site Builder, Child of Zeus

    I hope this gets appealed. The politically correct BS needs to stop. A business should be able to choose who they want to do business with. If that means it is not worth their while to spend the money to accommodate a small number of people, they should be able to make that decision. Government agencies should have to accommodate everyone, anything else… nope.

    I had ecommerce functions on my site several years ago and a blind lady told me that was the reason she used me to order printing… out of the box it was mostly compliant with her screen reader.

    I think I’m just going to add a disclaimer to my contract that ADA compliance is not guaranteed.

    • content composer

      Yes, it would be interesting to see how one can avoid having to engage in the design damaging and costly aspects. Would a disclaimer be effective, or just make your site a target?

      Having said that, some of the recommendations and requirements also make good sense for SEO as well such as adding descriptions to all images. Even adding captions to videos will be helpful. The transcripts can be used to repurpose content for example.

      • Site Builder, Child of Zeus

        The disclaimer wouldn’t be on my website, only my service agreements.
        I already do many of the things suggested. I just disagree with the premise of being legally liable to accommodate such a small audience.

        Obviously, I’m not a lawyer so my opinion isn’t worth much, but I believe the judge overstepped his bounds; until the ADA law is updated to include virtual access his ruling oversteps the letter of the law.

        • Mr. LetsFixTheWorld

          The thing is that the ADA was created to preclude all discrimination against people with disabilities. That is the spirit of the law. It’s a part of broader legislation, in the spirit of preventing any kind of discrimination. Legislating that a virtual presence is different from a physical presence would set a precedent which might lead to a popup on a website that says “we reserve the right to refuse service to anyone”, and perhaps a survey about the physical characteristics of a visitor, or their various biases, followed by some logic that determines what content will be offered to the visitor, if any. To avoid that, the general rule must be “No, you cannot discriminate against anyone in any medium on the basis of physical traits or intellectual bias”.

          In this case of course, the difference is active accommodation of visitor traits, compared to active or passive rejection for similar reasons. But one could easily argue that we do actively accommodate any number of individual visitor traits, so why not for this group too?

          As to the “letter of the law”, let’s look at the cited ADA text:

          “Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards.”

          1) A website is a place of public accommodation. We “accommodate” those who prefer to shop outside of brick and mortar environments. We accommodate their inability to get out of the house when there are other responsibilities. We accommodate their desire to shop from work.

          2) In two places that says “such as”, not “limited to”.

          3) While already addressed by #1, we do provide “commercial facilities”, with “facility” being defined as a place or mechanism that make something easier. The entire purpose of a website is to make it easier and more convenient to do business with a vendor. To be more explicit, the ACT says this explicitly:

          “Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.”

          When someone visits a website, I don’t think anyone could reasonably argue that the website is not a “site” or “equipment” as defined here, or that somehow the site owner is separate from the location of their equipment. In any other context a company would argue that their site is their property, an extension of themselves, and that if Their site is attacked that they would claim it was Their server and Their equipment – even if hosted with a third party.

          To be fair, if someone wants to argue with one word of the letter of the law… section 36.104 definitions include “Place of public accommodation means a facility operated by a private entity whose operations affect commerce **and** fall within at least one of the following categories..” I’m no lawyer but I’m not sure that a virtual website falls within the categories of physical places described for entertainment, recreation, commerce, etc. Someone might challenge the single word “and” …. but given everything else here I don’t think they’d get far. In the web development industry we routinely speak of virtual communities, we ask people to “Visit Us”, etc. We can’t have it both ways – either a website is a “place”, or it isn’t and we need to change our vocabulary.

          Here’s some good news: Section 36.303 clearly defines compliance:

          “A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services,…”

          And for those sites that can’t afford the huge cost, it looks like it’s possible to get a waiver:

          “… unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered **or would result in an undue burden, i.e., significant difficulty or expense.** ”

          So in letter (within reason) and spirit, this clearly applies to websites I think this industry has simply lucked-out by evading the terms for this long, like taxes and other regulations. The judge is acknowledging this by giving Winn-Dixie and everyone else three years to comply. This IS the legal notice to the industry that they know the terms are clear, though not explicit, and while we’ve been getting away with non-compliance for this long, now that this has come center-stage, they aren’t going to let us get away with it any longer.

          But for smaller sites, and those of us who need to advise businesses, it does look like exemptions are defined to avoid hardship as some here would face. As usual, while some people immediately think the law is binary, terms often include exceptions and accommodations for reasonable non-compliance. The law isn’t there to hurt people or business – it’s there to try to get a decent balance where people are protected as reasonably as possible, and wherever possible, no more and no less.

          Sometimes they get it wrong. THAT is where we need to petition for changes.

  • Mr. LetsFixTheWorld

    For the companies that actually must comply : we rely on a lot of WP plugins, FOSS and not, where we have no control over the authors. Let’s face it, most people give lip service to the freedom of FOSS and only want it because it’s “free as in beer”. Regulatory compliance will require some sites to modify their FOSS, or to motivate someone else to do it for them.

    What’s likely to happen is that individual companies will take their own initiatives to stop using some FOSS, or reluctantly to make internal code changes which are not released back to the public. Unless they’re distributing code they’re entitled to do that. But that means every company bears expense for making the exact same code changes, and perhaps for continuing to support their custom fork with periodicmerges from the original author.

    I have serious doubt that there will be any kind of compliance committee set up to mitigate that new industry expense. But such a committee could be setup, with a list of non-compliant plugins, and a plan for the good of all involved, to bring that code into compliance and to get it back into the hands of the original authors. That sounds like an awesome business opportunity for some entrepreneur who wants to consider it. Or perhaps a new revenue model for a company that’s already established in this industry, *cough* like WPMU DEV / Incsub.

    … it’s no longer a bug, now it’s a feature!
    … it’s no longer an expense, not it’s a profit center!

  • Ken
    New Recruit

    This is just another sleazy lawyer scam trying to rip off honest businesses. In Marin County CA we had a lawyer and a guy in a wheelchair that would go to stores with their tape measure and threaten to sue them if they didn’t pay a “settlement” to avoid a suit because the handrail was an inch too low or whatever. They did this to business after business… and to my thinking, THAT should be criminal… This is the same trick moving online.

    This is nothing about accessibility and everything about sleazy rip off artists trying to make an easy buck. If this guy wants to shop at Winn Dixie, I am sure he could call on the phone and order his prescription or whatever he needs, and the idea that a website will ever be EQUALLY accessible for a blind person is ridiculous.

    A website is a VISUAL element… if you are blind, you should not expect to be able have an “EQUAL” experience. And the idea that every site should have to spend big money to accommodate some very small number of potential users is absurd. Our country wastes billions of dollars on forcing small businesses that can’t afford it to do ADA changes that literally almost never get used.

    For big stores like Winn Dixie, I am sure their physical facilities are compliant… the idea that is not enough sounds like a greedy lawyer reading a bunch of poorly written regulations and finding a way to cheat the system. The judge should have thrown him out the door and made him pay Winn Dixie’s legal expenses.

    Even though it might mean more work for me as a web designer (IF I want to run the risk of being sued by some scumbag because we didn’t do the ADA stuff well ENOUGH), the end result will be having to dumb down all of the websites, and design everything so it is suitable for the blind and lousy for everyone else. How does that make any sense?

    • Mr. LetsFixTheWorld

      What we’re seeing here is one of the fundamental differences in view between American conservatives and progressives. If you’re in another part of the world, welcome to what we deal with every day. On-topic with this blog, I think the responses will be based more on world-view than on the pragmatic technical implications and actual costs. People need to get beyond that in order to have good discussions about each candidate website.

      “…if you are blind, you should not expect to be able have an “EQUAL” experience.”

      No one said that. People who can’t see your images or layout don’t care about what your site looks like. They don’t want an equal experience – and by the way, that’s impossible. They just want the content. Visually-oriented sites are packed with images and distracting animations. That’s not required for the visually impaired audience. In fact the less junk you include for a text-to-speech reader to process, the longer they’ll stay on your site.

      Have you tried to view your sites in accessibility modes? Do you get any usable content? If not, then that’s the whole point here. Just make it functional, not “equal”. It’s probably safe to say we all know someone who doesn’t visit web pages because for one reason or another they can’t. Any step taken toward making that situation better is a step away from denying that the problem exists or that the problem and the people affected are not worth consideration.

      “… And the idea that every site should have to spend big money to accommodate some very small number of potential users is absurd.”

      No one said that either. I did cite exclusions in my last comment. Passions about this are focused on absolute and grandiose phrases like : “every site”, “big money”, “very small number”. But the audience is larger than what is understood, the effort is smaller, the costs are lower, and it affects fewer sites.

      Just talking about blindness: Consider the statistics for visual impairment in the USA : https://nfb.org/fact-sheet-blindness-and-low-vision
      Those numbers are astounding. Statistics for worldwide visual impairment even moreso:
      http://www.who.int/mediacentre/factsheets/fs282/en/
      … though we can agree that’s not the demographic being discussed.

      Considering we spend most of our WP time in formatting content, it seems it shouldn’t be that difficult to provide separate templates for content that doesn’t require rigorous formatting. But if you’re going to try to modify all pages so that they provide both visual appeal And so that they can be consumed by someone who can’t see them, yeah, that approach will cost more.

      For anyone who has strong feelings about the challenge, visit a local center for the blind. The Braille Institute is awesome. See what tools they use, try JAWS, ask some questions, and come up with approaches that address their concerns and yours. I think you’ll learn that it’s all quite different than what you think. Not interested? Yeah, that’s kinda the problem that the ADA intends to address.

      “…the end result will be having to dumb down all of the websites, and design everything so it is suitable for the blind and lousy for everyone else. How does that make any sense?”

      You’re right. That makes no sense at all, because it’s an invalid conclusion. I don’t think you’ll find a public-targeting, ADA-compliant website that fits that description. The markup for accessible pages doesn’t display to people who have accessibility turned off – you don’t need to dumb down one view to improve the other. But to-date most of us do completely ignore this demographic, and that’s the problem that they’re trying to address. With some googling you’ll find lots of people have been sharing good examples of accessibility-compliant websites for at least five years.

      “poorly written regulations”

      The ADA doesn’t say anything about the internet. Maybe it should. Maybe this is the way we make progress on such things to address your concerns and the concerns of those for whom the ADA was written. But in my opinion what’s there is pretty well written, just incomplete. I’d enjoy discussing specific sections but we’ll have to leave that non-WordPress topic to another site.

      When we see an act by an individual like this, it’s usually the final straw for one person who has risen above thousands who didn’t (or couldn’t) speak up for themselves. Characterizing it with offensive language, without knowing the facts, is inappropriate. One of my dear friends handcuffed himself and his wheelchair to a bus as a protest against years of being unable to travel in the public transit system. That one act led to massive changes which changed the life of a Lot of people for the better. Rosa Parks refused to give up her seat on another bus, bringing attention to another kind of accessibility. The internet as we know it has been around for over 20 years and it’s still highly inaccessible to people with disabilities because too many site developers don’t take simple steps to use the tools that are available. We’re comfortable ignoring these people and when it’s time to stop ignoring them, we see empassioned references to lost profits, slimy lawyers, people with poor ethics, a broken legal system, and lack of justification for change. It’s surprising to me that it’s taken this long for this event to happen – though the ADA itself has taken a long time to take shape.

      No one is asking for Every site to be Fully accessible. Somewhere between the extremes of nothing and everything there can be a common ground.

      • content composer

        Tony, I really appreciate that you took the time to dig deeper into these issues. Very well written and informative.

        One last note I would like to add is that we make it easier for people with disabilities by creating, hosting and managing websites. Online shopping and content services have made the world far more inclusive for those with disabilities. I believe this should be foremost in the mind of any judge presented with cases like this in the future.

  • WPMU DEV Initiate

    This is just typical US legal insanity. This kind of action is unlikely to succeed in most countries, but the US has a long tradition of stupid law cases being successful.
    What’s next? The National Parks and Wildlife Service over the Grand Canyon not providing wheelchair access to the entire canyon? The Blue Ridge Mountains for not being visible to the legally blind? I should move to the US where my disability could make me rich.

  • Design Lord, Child of Thor

    The bit that makes me scratch my head is that there’s no legal requirement to have a website. It doesn’t make sense that you can be penalized for not having enough of a website when you can’t be penalized for not having a website at all.
    “Thanks for having a website that helps a ton of people. You didn’t have to do that. But since you helped those people, you have to pay a lot of money to help everyone or you’ll be in contempt of court and be penalized.” I don’t get how the lack of action to help a specific group is discrimination.

    Non-web-related comment: movie theatres are on the list. They have to provide accommodations for the blind!? That’s insane.

    • Mr. LetsFixTheWorld

      This response from @jwrobbs and a few others is Exactly what this is about. You apparently don’t understand the problem beyond the obvious “blind people can’t see” and “people in wheelchairs can’t walk” concept. Your responses go to extremes where legislation does not – for all of those good and logical reasons.

      Your “all or nothing” responses convey a lack of understanding of the requests put forward and the well-considered resolutions in place. Notes about how this is an excuse to sue for quick bucks rightfully acknowledges that there are people in society who do that sort of thing. But that’s still a straw man argument which diverts from the real points: People with disabilities Do have rights. When places that should conform to laws don’t, they deserve some attention.

      No, legislators aren’t making stupid blanket decisions on this topic (can’t say the same for some other topics). Do a simple Google for terms like “ada theatre” or “ada website”. Actually read about what you’re talking about. You’ll see that the arguments and legislation are much more logical than your personal knee-jerk responses imply. There is middle ground and it’s quite reasonable … just take a few minutes and educate yourselves.

      In a diverse society we need that middle-ground which considers reasonable requests and which results in reasonable solutions (not a wheelchair-accessible Grand Canyon). Your responses come from a time where everyone was quite comfortable neglecting people who had disabilities. “Can’t walk? Too bad. Find someone who can get stuff for you.” “Can’t see? Too bad, no more books or movies for you.” Apparently you folks don’t know anyone who has gone blind from diabetes, accident, or other events – or you and they have unnecessarily accepted a sub-standard lifestyle because you think that’s both required and the norm. It’s neither – and our laws help us to establish better recognition and handling of these concepts.

      We can have a more accommodating web and physical world without resorting to extremes. Disabled people aren’t asking for extremes. Legislation isn’t demanding exteremes. The ADA People who claim it is extreme should take that energy and go read a couple web pages before commenting on one.

  • Ken
    New Recruit

    I just read this, a little late to the comments. A lot of commenters exclaim the hassle of accessibility for a small percentage of the population. In fact, 18+% of Americans (~65M people) are disabled. ~13% severely disabled. So, if you aren’t moved by equality, compassion or the law, let good business sense motivate you. Also, remember that one day you are likely to be in the other side…most disabilities are age related.

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