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A lawsuit against grocery chain Winn-Dixie became the first case of its kind to produce a decision holding, after a trial, that a public accommodation violated the Americans With Disabilities Act (ADA) because its website was inaccessible to a customer with a disability.  Not only does the case drive home the threat of website accessibility claims, but the court’s order provides valuable guidance on bringing websites into compliance with the ADA.

Accessibility of the Winn-Dixie Website

The plaintiff (Juan Carlos Gil) is legally blind.  He began shopping at Winn-Dixie because of its low prices and convenience to his home.  Gil learned from Winn-Dixie television ads that he could visit the Winn-Dixie website to access coupons and fill prescriptions.  However, he often found the website difficult to navigate with special software designed to assist vision-impaired individuals in using computers.  The Winn-Dixie website did not work well with the software 90% of the time.  As a result, Gil could not access coupons or order his prescriptions online.  Gil sued Winn-Dixie for violating the ADA by denying him goods and services based on his disability.

Winn-Dixie’s vice president of IT (Rodney Cornwell) testified that the company was building an ADA policy for its website but had not completed it.  Part of the challenge appeared to be getting third party vendors that interface with Winn-Dixie’s website (like Google and American Express) to ensure that their websites are accessible.  Cornwell admitted that it was feasible to modify the website for accessibility, and that the company had budgeted $250,000 to make the modifications.  An expert on website accessibility testified that his firm could make Winn-Dixie’s site accessible for $37,000.

The Court’s Decision

After a bench trial, the court determined that Winn-Dixie violated Title III of the ADA because its website was inaccessible, and included a draft injunction in its order that would require the company to make the website accessible and post an accessibility policy on the site.  The court did not consider the $250,000 cost to make the website accessible too high, noting that Winn-Dixie spent $2 million to launch the website initially and another $7 million to adapt it for use in the Plenti rewards program.

The court adopted the Web Content Accessibility Guidelines (WCAG) 2.0 as the standard Winn-Dixie must meet to make its website accessible.  WCAG 2.0 is a set of guidelines developed by a private group of accessibility experts.  Although the standard has been used in consent decrees and settlement agreements, and the Department of Justice has referenced the standard in the Title II rulemaking process, this marks the first time that it is formally adopted as the legal standard for public accommodation websites.

The court also held that Winn-Dixie is responsible for accessibility of its entire site, including parts of it operated by third party vendors.  The court reasoned that Winn-Dixie has a legal obligation to require third party vendors to be accessible if they choose to operate within the Winn-Dixie website.

The injunction was entered on July 6, 2017.  Winn-Dixie is appealing the trial court’s decision.

Takeaways

The Winn-Dixie order is significant in several respects.

  • Plaintiffs in ADA website accessibility lawsuits now have legal precedent that websites are places of public accommodation and therefore must be accessible to individuals with disabilities. The decision, which is not binding, does not mean that all consumer facing websites are places of public accommodation.  The Ninth Circuit, of which Hawai‘i is a part, requires a “nexus” between a website and the physical place of public accommodation for an ADA violation to occur.
  • Although this case involved a public accommodation, it can have implications on website accessibility claims against employers.  Title I of the ADA applies to private employers with 15+ employees.  Covered employers may not discriminate against employees with disabilities and must make reasonable accommodations for them.  In addition, accessibility may be an issue for business websites that allow job applicants to apply online.
  • The court adopted WCAG 2.0 as the legal standard for accessibility. Still uncertain is what level of compliance is required, as WCAG 2.0 has multiple levels of conformance (A, AA, AAA).   Also unclear is whether substantial compliance with the standard is enough or 100% compliance—which may be impossible—is required.
  • Website owners should develop a website accessibility policy and link to it on their website.
  • One factor in determining the burden of the cost of compliance is its proportionality to the overall cost of developing the website, including past modifications.
  • Website owners are responsible for the accessibility of third party vendors that interface with their site. This requirement can be challenging to satisfy, especially if a website uses smaller third party vendors who might lack resources to ensure accessibility of their applications and websites.

Consult a lawyer with website accessibility experience to help you evaluate and mitigate the risk of ADA liability.

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safeWhether it’s the secret recipe for your gourmet cupcakes or a unique process for manufacturing your best-selling product, trade secrets are valuable company assets.  When an employee leaves, there’s a risk they will take your trade secrets with them to a competitor or to start their own business.  So what relief is available if you’re a victim of trade secret theft?  Hawai‘i companies already can seek relief from the Hawaii Uniform Trade Secrets Act, but now there’s another tool to combat trade secret theft.  On May 11, 2016, President Obama signed the Defend Trade Secrets Act (DTSA) into law, which adds a federal layer of protection for trade secrets.

Here are the highlights of the new law:

What does DTSA do?  The DTSA creates a new federal remedy for trade secret misappropriation.  Prior federal trade secrets law only criminalized certain misappropriations of trade secrets.  The DTSA allows victims of trade secret misappropriation to sue in federal court.

Is the DTSA my exclusive remedy?  No.  The DTSA creates a national standard of trade secret law and gives you more options for seeking relief, but it doesn’t pre-empt state law.  You may still take advantage of trade secret protections under state laws like the Hawaii Uniform Trade Secrets Act.

What’s so special about the DTSA?  One feature of the DTSA is that it allows a court to grant an “ex parte seizure order.”  This new remedy lets trade secret owners seek a court order to seize allegedly stolen trade secret items in the accused wrongdoer’s possession without first giving them notice.  Seizure orders are granted only in “extraordinary circumstances.”  To safeguard against abuse of seizure orders, the DTSA entitles victims of wrongful seizure to damages, punitive damages in cases of bad faith, and attorneys’ fees.  It remains to be seen how courts will apply the ex parte seizure provisions of the DTSA and how often the remedy will be used.

What do employers need to know about the DTSA?  Injunctive relief granted under the DTSA may not “prevent a person from entering into an employment relationship” and must be consistent with state law “prohibiting restraints on the practice of a lawful profession, trade, or business.”  In other words, the DTSA does not override state law governing non-compete covenants.  Claims under state law may need to be included in the lawsuit to enforce non-compete provisions in an employment agreement.

The DTSA also provides immunity for whistleblower employees (which the DTSA defines broadly to include independent contractors and consultants) who disclose trade secrets to any government official solely for the purpose of reporting or investigating a suspected violation of law or in a court filing made under seal.  Notice of the whistleblower immunity provisions must be given in every agreement entered into after May 11, 2016 that restricts the employee’s use of a trade secret or other confidential information.  The notice requirement may be satisfied by referencing the immunity provisions in a policy document (like an employee manual) rather than inserting the provisions into each employment agreement.

For more specific information on how the DTSA affects you, consult experienced legal counsel.

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Human Hand, Digital Tablet, Touching.

Since the Americans with Disabilities Act (ADA) was passed in 1990, businesses have been vulnerable to “drive-by lawsuits” alleging that their facilities are physically inaccessible to disabled customers or guests.  The new trend in ADA litigation is the “surf-by” lawsuit—disabled individuals who sue under the ADA because a business website they visited was allegedly inaccessible to them.  The U.S. Department of Justice also has been aggressively enforcing website inaccessibility violations even though it won’t issue regulations until 2018.

If you’re still not convinced that the threat of website accessibility lawsuits is real, consider that in March, a California trial court became the first in the nation to rule on summary judgment that a retailer’s website violated the ADA and California’s anti-discrimination law (the Unruh Act).  The court determined that the website was inaccessible to visually impaired individuals.  The judge slapped the retailer with $4,000 in statutory damages under the Unruh Act, ordered it to either modify or remove the website, and awarded the plaintiff its attorneys’ fees, which are estimated to be in the six-figure range.

What can business owners do to prevent being sued for website accessibility violations?  Start with these steps:

  1. Determine if the ADA applies to you. Title I of the ADA applies to private employers with 15+ employees.  Covered employers may not discriminate against employees with disabilities and must make reasonable accommodations for them.  In addition, accessibility may be an issue for business websites that allow job applicants to apply online.  Title II applies to State and local governments.  Under Title III, the website of an organization that qualifies as a “public accommodation” must be accessible to individuals with disabilities.  Courts are split on whether “pure Internet” organizations (i.e., those without a bricks-and-mortar presence) are subject to website accessibility requirements.
  1. Identify accessibility issues. If the ADA applies to you, determine if your website poses accessibility problems to disabled individuals.  The DOJ has not yet officially adopted rules for website accessibility, but is considering two sets of standards – the Web Content Accessibility Guidelines (WCAG) 2.0 created by the World Wide Web Consortium and the Electronic and Information Technology Accessible Standards published by the U.S. Access Board for compliance with Section 508 of the Rehabilitation Act.  Common accessibility barriers include lack of closed-captioning for audio and video content, a site navigation structure unfriendly to keyboard-only users, and failure to provide descriptive text for images and non-text content.
  1. Get expert help. Web accessibility standards are highly technical.  Consider consulting an IT expert with web accessibility experience to help you identify accessibility problems and solutions.  You should also consult a lawyer with ADA experience to help you evaluate and mitigate legal risk, or to devise a defense strategy if you’ve already received a demand letter threatening litigation.

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One of the bombshells in the DeflateGate saga was the revelation that Tom Brady had his cell phone destroyed shortly before meeting with the National Football League’s investigators. According to the NFL’s written decision suspending Brady, Brady knew that the investigators wanted access to text messages on the phone he had when the AFC Championship was played. Even so, Brady instructed his assistant to dispose of the phone—just four months after starting to use it. The dubious circumstances surrounding the disappearance of the phone greatly hurt Brady’s credibility in NFL Commissioner Roger Goodell’s eyes, and was instrumental to his eventual decision to discipline Brady.

There are HR lessons to be learned from this story. An employee’s mobile device can contain information you need for an investigation or lawsuit. So what can you do to get access to the device or the data on it now that employees frequently use their personal devices for work?

Adopting a Bring Your Own Device (BYOD) work policy is a good start. At a minimum, a BYOD policy should reserve the company’s right to access any electronic device an employee uses for work, even if the employee owns it. The policy should also state upfront that employees have no expectation of privacy to data stored on their personal devices – that’s the tradeoff for letting them connect to the company network.

After establishing the ability to take possession of employee-owned devices, think through the steps for preserving data on the devices before it’s too late. One measure is to issue a “litigation hold” instructing employees not to destroy a device or delete data from it. Be specific about the kinds of data they need to preserve. A crucial element of a litigation hold is an instruction to suspend routine purging of data or equipment – much like Brady’s practice of destroying his old phone whenever he got a new one. The litigation hold should be issued as soon as you know that a lawsuit or investigation is coming.

Next, determine the kind of electronic information you want. Preservation and extraction methods differ depending on the kind of data. Text messages need to be preserved quickly because once they’re deleted off a phone or tablet, it’s difficult to find a copy of them elsewhere. As Brady learned when he tried accessing text messages on his missing phone through his wireless carrier, carriers don’t keep subscribers’ text messages on their servers for very long, and they typically delete the messages after delivery to the recipient. Emails have a longer shelf life, especially if they’re stored in a web-based account like Gmail or Yahoo or transmitted through company servers.

Be proactive and act quickly. Don’t let your hopes of getting the electronic evidence you need get deflated.

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The Hawaii Judiciary is proposing amendments to the Hawaii Rules of Civil Procedure (HRCP) to address e-discovery issues.  The deadline for submitting comments is April 17, 2014.  The proposed amendments are available here.

Some of the more notable changes being proposed are:

  • The addition of references to “electronically stored information” (ESI) to Rule 26 (general discovery provisions), Rule 30 (depositions), Rule 33 (interrogatories), Rule 34 (document requests), Rule 37 (discovery sanctions and motions to compel), and Rule 45 (subpoenas)
  • Amended Rule 26 expressly permits discovery of ESI with the caveat that a party need not provide  discovery of ESI from sources that are not reasonably accessible because of undue burden or expense.  The party claiming undue burden or expense has the burden to make that showing.  However, even if the showing is made, a court may still order disclosure or discovery of ESI for good cause.
  • Amended Rule 34 allows document requests to specify the form in which documents or ESI are to be produced.  The responding party may object to the requested form, and if it does so, it must state the form it intends to use.  If a request does not specify a form for producing the requested documents or ESI, the responding party must produce the requested materials in the form in which they are ordinarily maintained or in a form that is reasonably usable.  A party does not need to produce the same documents or ESI in more than one form absent showing of good cause.
  • Amended Rule 37 prohibits a court from imposing sanctions for failure to provide ESI lost as a result of routine, good-faith operation of an electronic information system absent exceptional circumstances.
  • Amended Rule 45 would address requests for, and production of, ESI in the context of subpoenas.

For more information on the proposed amendments, visit the Judiciary’s website.  To submit comments online, click here.Enhanced by Zemanta