After Winn-Dixie, Digital Inclusion is Still an Imperative
by Austin Smith
Accessibility is a topic close to our hearts here at Alley as a matter not of technical compliance but of inclusive product design. Inclusive design holds that “disability” is as much a function of the product as it is the user, and that in fact, there is no typical user.
America’s legal system, unfortunately, lags far behind current practice. I learned from David Lat’s excellent newsletter that the 11th Circuit Court of Appeals found, in Gil v. Winn-Dixie, that Winn-Dixie “could not be held liable for having a website that’s inaccessible to customers with visual disabilities that rely upon screen-reading software.”
The given rationale for this decision is that web sites are not listed among the dozen places that are public accommodations in the Americans with Disabilities Act, an almost tautological point, given that the ADA was enacted in 1990. The public web was only a year old and HTML was invented in 1993. By 1998, Congress had caught up somewhat and amended the Rehabilitation Act of 1978 to include Section 508, which stipulates that federally funded internet communication technologies must meet certain basic technical standards of accessibility.
Given that Section 508 is now 23 years old, the 11th Circuit’s comprehension of the ADA’s scope seems like a technicality that is long overdue for a legislative solution.
Despite the legal finding that Winn-Dixie is not liable for its inaccessible website under the ADA, many businesses will soon be liable under Section 508, which was recently proposed as a requirement under the Federal Acquisition Regulations (FAR). FAR regulates the conduct of Federal contractors.
One important Federal Program is the Supplemental Nutrition Access Program, or SNAP. Winn-Dixie certainly participates in SNAP; three locations in Miami, where Gil are listed in the SNAP database. Whether Winn-Dixie is a Federal contractor because of their participation in SNAP and thus subject to FAR, I do not know.
Additionally, this ruling is not binding outside of the 11th Circuit, nor is it binding on state courts. An appeal by plaintiff Gil to the Supreme Court that results in the 11th Circuit’s decision being upheld, however, could have much more wide-reaching effects.
Whether inclusion (if only via the narrow definition of accessibility) is a legal mandate or not, it will remain a top priority for us at Alley.
Originally published at https://alley.co on April 12, 2021.