Ralph Lauren, Payless Shoes, and the Kardashian’s store, DASH, have each been slapped with separate civil rights lawsuits, claiming that they have violated (and continue to violate) a federal civil rights statue in connection with their websites. According to Andres Gomez’s lawsuits – which were filed in the U.S. District Court for the Southern District of Florida, a federal court in Miami, and cite violations of the Americans with Disabilities Act (42 U.S.C. § 12181) (“ADA”) – the defendants “denied visually impaired plaintiff [Andres Gomez] from having full and equal access to their website[s] due to their failure to have screen reader software on it.”
In his lawsuits, Gomez claims that he “suffers from macular atrophy, refraction amblyopia, vitreous detachment, and high myopia. As a result, [he] is visually impaired and unable to fully engage in and enjoy the major life activity of seeing … He frequently utilizes the internet. He is unable to read computer materials and/or access and comprehend internet website information without software specially designed for the visually impaired. Specifically, [he] utilizes the JAWS Screen Reader software, which is one of the most popular reader Screen Reader Software utilized worldwide.”
For the uninitiated, the ADA gives civil rights protection to individuals with disabilities similar to that provided to individuals on the basis of race, color, sex, national origin, age and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services and telecommunications. To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. The ADA defines a disabled individual as a person who has a physical or mental impairment that limits one or more major life activities, a person who has a history or record of such impairment or a person who is perceived by others as having such impairment.
According to Gomez’s complaints, each of the defendants – Ralph Lauren, Payless Shoes, and DASH – “own, leases, leases to, or operates a place of public accommodation as defined by the ADA” and maintains websites that “is complementary and supplemental to, the above-referenced public accommodation.” As a result, their websites are governed by the ADA, in particular, 42 U.S.C. Section 12182(a), which provides: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." That section further states: “It shall be discriminatory to subject an individual … on the basis of a disability or disabilities … to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity."
In short: Gomez alleges that by failing to equip their websites with screen reader software to enable visually impaired individuals to “enjoy full and equal access to the website and/or understanding the content therein,” the defendants are in violation of the ADA.
As a result of the defendants’ failure to properly format their sites to abide by the tenants set forth by the ADA, Gomez claims that he “has suffered, and continues to suffer, frustration and humiliation as the result of the discriminatory conditions present at [the defendants’] websites. By continuing to operate its website with discriminatory conditions, [the defendants] contribute to [his] sense of isolation and segregation and deprives [him] the full and equal enjoyment of the goods, services, facilities, privileges and/or accommodations available to the general public.” He further asserts that he “has suffered and will continue to suffer direct and indirect injury as a result of the [defendants’] discrimination until the [defendants] are compelled to comply with the requirements of the ADA.”
Gomez has asked that the court order each of the defendants to “continually update and maintain [their] websites to ensure that they remain fully accessible to and usable by visually impaired individuals.” He is also seeking monetary damages.
Over the past year and a half, Gomez has filed nearly identical lawsuits against H&M, Lacoste, Jo Malone, Coach, Giorgio Armani, Gucci, Wet Seal, Versace, Vera Wang, Valentino, Urban Outfitters, Tory Burch, Bally, Hugo Boss, Louis Vuitton, Perry Ellis, New Balance, Nike, and J. Crew, among others. It appears that Nike, H&M, Tory Burch, Louis Vuitton, and Perry Ellis – in addition to other brands – have settled their matters with Gomez out of court.
According to a statement from one of Gomez's attorney, Thomas Bacon, exclusively to TFL: "Case law holds that websites are considered extensions of places of public accommodation because they provide access to the goods, services, facilities, accommodations, benefits and advantages of a place of public accommodation. The prevailing interpretation is that this is limited to websites that are associated with a physical location, such as a store. Such websites must be accessible to the disabled, including those who are visually impaired. There are standards and software that is recognized by the industry for such access. Websites have been designed well after the effective date of the ADA and continue to be revised, upgraded and maintained. Therefore, there is no excuse for failure to make websites available to the visually impaired. The public relies heavily on websites to shop and otherwise access places of public accommodation. To deny equal opportunity to the visually impaired is to effectively shut them out of an advantage and opportunity afforded to the non-disabled public."
A GROWING AREA OF LITIGATION
Gomez's lawsuit and others like it should serve as a wakeup call for brands. While it may seem as though Gomez is taking something of an overly aggressive approach to litigation here - suing every brand from Taco Bell to Louis Vuitton in a period of 18 months or so - he is not alone. In the past year, an increasing number of companies have faced lawsuits from both blind and deaf plaintiffs alleging that their websites violate the ADA.
Many companies have looked to the Department of Justice ("DOJ") for guidance on how to make their websites compliant with federal disabilities law, only to be faced with a years-long wait. In the meantime, judges are not waiting for the DOJ to speak out on this matter and are, instead, moving forward with the cases that have been filed. This past March, a California judge handed a landmark victory to Edward Davis, a blind plaintiff, who sued luggage retailer Colorado Bag’n Baggage and a dozen other companies, alleging that their websites were not accessible to visually impaired consumers. The court ordered Bag’N Baggage to pay Davis $4,000 and enjoined it from further violation of the ADA, ordering it to make its website fully accessible to the vision-impaired.
On the heels of the favorable ruling in the Colorado Bag’n Baggage case, Mr. Davis's attorney, Victoria Knowles of the Newport Trial Group, said: “We are very grateful that the Court agreed that corporate websites must be accessible to individuals with disabilities. This ruling will have implications far and wide.” And she is not wrong.
* The cases are: GOMEZ V. PAYLESS SHOESOURCE, INC. 1:16CV24344, GOMEZ V. DASH BOUTIQUE, INC. 1:16CV24294, and GOMEZ V. RALPH LAUREN CORPORATION ET AL 1:16CV24295.