Disabling Code: Franchisors Should Ensure Digital Properties Are Accessible
Wednesday, August 16, 2017 at 11:54AM
Admin in ADA, Barry Kurtz, Business Law, Franchise Law, General Business, digital media, restaurant tech

Franchise Distribution Attorney Barry KurtzChair, Franchise & Distribution Practice Group

by Barry Kurtz

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Are we still in the dawn of the digital age, or have we moved on to mid-morning yet? Only time, and your company's web site and applications, will tell.

Unfortunately, when it comes to website accessibility, it is still dark as midnight before the dawn for some users. That’s evidenced by the rise in web and app litigation we’re seeing lately – a surge of claims citing Title III of the Americans with Disability Act (ADA) violations.

One Forbes contributor opines that California, Florida, Texas and New York are the states most burdened by ADA lawsuits, though the heyday of quick ADA settlements may be throttled with new legislation soon. The writer is referring generally to physical impediments to a disabled person's use of a public facility.

But lately, there has been some litigation concerning online use as well. And this is of particular importance to franchisors who provide online ordering services.

An ADA Defense Can Not Be Built on Bricks Alone

To illustrate, franchisor Five Guys Enterprises LLC recently learned a class action lawsuit against the company will proceed in court. The suit was filed by Lucia Marett, who claims that Five Guys' online ordering system is inaccessible to the blind and visually impaired.

Five Guys attempted to get this suit dismissed by contending that the ADA only applies to brick and mortar locations, not to digital properties, and that the company was in the process of building a compliant site to better accommodate the disabled.

In denying the dismissal, U.S. District Judge Katherine B. Forrest said,

. . . defendant’s website is covered under the ADA, either as its own place of public accommodation or as a result of its close relationship as a service of defendant’s restaurants, which indisputably are public accommodations under the statute. 

Another web accessibility lawsuit actually went to trial, this time in Florida, and the result does not bode well for non-compliant businesses.

In Juan Carlos Gil v. Winn-Dixie Stores, Inc., plaintiff is blind and uses screen reader software that speaks written text, to help him navigate commercial websites. Unfortunately, Gil was not able to use this tech on Winn-Dixie's website.

Gil previously relied on in-store services and acquaintances to help him purchase groceries, refill prescriptions, and use coupons at the chain's physical properties – but a Winn-Dixie television commercial spurred Gil to try these services online. Unfortunately, when Plaintiff visited the site, he found about 90 percent of it was inaccessible to him and could not be read by the software he used.

The grocery chain argued that it never tried to prevent Plaintiff's access to any of its physical stores, and therefore, is not guilty of violating the ADA.

The federal district court disagreed, saying Winn-Dixie's website serves as a digital wormhole of sorts – it is a "gateway to the physical store locations" and therefore, is considered a service of public accommodation. Judge Robert N. Scola clarified,

. . .the ADA does not merely requir[e] physical access to a place of public accommodation. Rather, the ADA requires that disabled individuals be provided ‘full and equal enjoyment of the goods, services, facilities privileges, advantages, or accommodations of any place of public accommodation.

What impact do these lawsuits have on franchisors?

Franchisors' Guide to Digital Compliance

Chances are, if you're successfully running a busy chain of restaurants, hotels, accounting offices or whatever, you are not well versed in the technical aspects of digital properties. The best thing to do is hire the right people to handle this. And by the "right people", we mean web and app developers who are well versed in ADA Compliance.

When engaging a third party to build your websites and ordering systems, here are some basic questions to ask:

1. Will there be "alt tags" or "longdesc tags" added to all images? (Tags are part of hypertext markup language, or html code – these tags will allow a screen reader to describe an image to the user.)

2. Will documents be posted in readable formats for the visually impaired? The standard PDF (Portable Document Format) is generally not readable. Ask your developer to upload restaurant menus, coupons or other documents in html or "rich text format," as well as pdfs.

3. Will users be able to adjust font sizes and colors? Branding is critical to your business and you'll want your font and colors to be used on all marketing collateral. But some visually impaired users will need to see screens in specific color combinations and sizes. You developer will need to design to reflect your brand, but also to allow end-users to adjust to their own readable specifications.

4. Will videos include both audio and captions? If incorporating multi-media, ensure both the visually impaired and the hearing impaired can access the files.

5. Will online forms include descriptive HTML tags? All web users should be able to complete forms without a hitch.

The general rule of thumb for compliance is this: ensure all features available to the customers with full sight and hearing capabilities are also available to those with impairments.

The internet is nearly 50, and both the World Wide Web and the ADA are 27 years old this year – that's actually pretty ancient in terms of cyber shelf life. Don’t ignore web and app development for so long. Code that’s more than three or four years old may not be readable by the latest browsers, let alone tech tools for the disabled. Update regularly.

Barry Kurtz is a Certified Specialist in Franchise & Distribution Law, per the State Bar of California Board of Legal Specialization.

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