Just because the Department of Justice does not yet have new website accessibility rules for places of public accommodation doesn’t mean businesses hosting websites aren’t already at risk.

Blind or visually impaired plaintiffs have been filing federal lawsuits against companies over the accessibility of their websites, although they’re meeting with different results.

A federal judge in Florida recently handed down a verdict in the case of Gil v. Winn-Dixie Stores, Inc., finding that Winn-Dixie had violated Title III of the Americans with Disabilities Act by having a website that could not be used by the blind plaintiff.

A week later, a federal court judge in California ruled that blind plaintiff Sean Gorecki could continue his lawsuit against retailer Hobby Lobby about the accessibility of its website. Hobby Lobby had asked the court to dismiss the case on various grounds, all of which were rejected by the judge.

In the Winn-Dixie case, Judge Robert Scola ruled on three issues:

• Whether Winn-Dixie’s website was subject to the ADA;
• Whether the plaintiff was denied the full and equal enjoyment of Winn-Dixie’s goods and services because of his disability; and
• Whether the requested modifications to Winn-Dixie’s website were reasonable and readily achievable.

The judge concluded that Winn-Dixie’s website was subject to the ADA, noting that it operates as a gateway to the physical stores.

The court also determined that Winn-Dixie’s website was inaccessible to visually impaired individuals who must use screen reader software and therefore violated the ADA. Even though third parties operated parts of the website, the court still held Winn-Dixie responsible for the lack of accessibility.

Lastly, the court ruled that the $250,000 cost of making the website accessible was not an undue burden as the cost was small compared to the millions Winn-Dixie had spent to launch and later remake the site.

The ruling directly contradicts two wins for retailers in this arena from earlier this year.

In a Florida case, a federal court judge dismissed a lawsuit because the plaintiff failed to allege that his ability to use Bang & Olufsen’s retail website prevented him from accessing its stores. Explicitly rejecting the argument that the ADA requires a website to provide the same online shopping experience as it does for non-disabled people, the court held that the statute only requires that “if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store.”

In a California case, a federal court dismissed a lawsuit by a blind plaintiff who claimed that he could not use his screen reader to order a pizza from Domino’s Pizza. While rejecting the argument that the ADA did not cover websites, the court ruled that Domino’s had met its obligations under the law by providing access to its services by phone, and that requiring Domino’s to have an accessible website at this time, when neither the law nor the regulations require websites to be accessible, would violate the company’s constitutional rights.

Despite the mix of opinions being handed down by courts, the rise in these types of cases is noteworthy, and could inspire others to file lawsuits and issue pre-litigation demand letters against retailers asserting website accessibility claims. Businesses should consult with a legal professional to determine if there is a need to craft a strategy for preemptively dealing with these issues.