Napa Valley Register”Winery websites at the heart of lawsuits over ADA compliance online”

05 Oct 2019

Winery websites at the heart of lawsuits over ADA compliance online

As e-commerce booms, a winery’s website might be expected to provide a virtual experience that mirrors an in-person one – and now that applies to installing ADA compliant features.

Passed in 1990, the ADA, or the Americans with Disabilities Act, guarantees equal opportunity to individuals with disabilities across different facets of public life. In the last two years, ADA compliance as it relates to online spaces has increasingly gained attention.

It’s begun to apply to businesses across the board, wineries included. Last fall, 26 wineries from New York State were sued as part of a class action lawsuit for failure to provide an accessible online platform for visually impaired users; an additional 12 were sued in January.

There have also been lawsuits in the North Bay area. Taylor Eason, founder of Santa Rosa-based Cork & Fork Digital Media, currently works with two clients involved in ADA compliance-related lawsuits, though she would not specify which because of the ongoing legal proceedings.

“This has hit the wine industry by storm: it’s just been a scourge of lawsuits,” Eason said. “Everyone’s concerned, and if it isn’t a point of concern (for wineries), it should be.”

The ADA has been amended through the years, often reflecting relevant societal issues to better accommodate individuals with disabilities. ADA compliance online remains something of a gray area, though, because there are no established standards for how to make a website ADA compliant, according to James Marshall Berry, chief strategy officer at Wine and the Web, which creates and updates winery websites.

“The issue is that there’s no such thing as an ADA compliant website – that doesn’t exist,” Berry said.

That is, until the federal government establishes standards for virtual spaces, as it has for physical accommodations, the definition of compliance will evolve as the respective lawsuits – against wineries and other businesses – progress, according to Berry.

ADA compliance was a topic of discussion during an e-commerce panel at last week’s Wine Industry Technology Symposium. Camille Guimaraes, marketing manager for Bundschu Company, which owns Gundlach Bundschu Winery in Sonoma, said ADA compliance was, at its heart, a matter of customer service.

“Nobody would ever think to build a tasting room without a ramp, so we shouldn’t be making any digital build without thinking of the equivalent,” she told the audience, adding that the company was partially basing its standards off of existing ADA compliant platforms. “We’re looking at websites that do it not to check a box and pass a test, but to make every single person’s experience the best that it can be.”

Some companies have said they will not make changes to their websites until the federal government explicitly defines what kind of virtual accommodations define ADA compliance online.

Domino’s, the pizza chain, recently petitioned the Supreme Court to hear a lawsuit filed against it by a blind California resident, in the hopes that the case would result in a concrete definition of website compliance. The future of the case against the chain could have “sweeping ramifications” for e-commerce platforms, according to Berry.

Standards for ADA compliance do exist outside of federal guidance, according to Richard Idell, an attorney at Dickenson, Peatman & Fogarty, which has worked closely with many North Bay wineries. He points to the Web Content Accessibility Guidelines, published by the Web Accessibility Initiative, a third-party internet organization.

At the most basic level, standards include amenities like alternative identification tags for photographs (a text description of the photo, so that its content is accessible for blind users) and subtitles on video content for deaf users.

“Conventional wisdom says (you should) bring your website up to the standard that’s accepted,” Idell said. “Making your website accessible, whether or not it’s legally required to be – you’re buying insurance so that nobody can make a claim against you.”

Wineries can “scan” how compliant their existing sites are, but that technology doesn’t always account for smaller details of what’s currently considered to be ADA compliance, according to Eason. (The scan might inspect for alternative identification tags, for example, but is unable to convey if the tag is an accurate description of the photograph). What can be incredibly costly, she said, are the hours required to inspect a website page-by-page – and that’s just an assessment of the existing problems, not a fix.

The cost of making a website ADA compliant depends largely on the existing platform – how easily it can be modified and how large it is, according to Berry. But the fines lobbied against wineries involved in compliance lawsuits can also be incredibly costly, ranging from $15,000 to $35,000, Berry said.

“It’s unfortunate that it’s come down this way, because the reality is that we all want to be as compliant as we can,” Berry added. “The lawyer pools involved in this aren’t helping the problem, because the money they’re gleaning isn’t going towards the website compliance.”

For small wineries, that kind of fine can be especially devastating. Berry believes the wine industry, specifically, is perceived as being universally “deep pocketed,” making it a potential target for these kinds of lawsuits. The wine industry is slow to adapt to technology, he added, but when it comes to ADA compliance, most industries are behind.

In an interview, Guimaraes described equal access to information as “a human right”. Her company is working to be respectful of that fact with its website, she said.

“It’s more than just making it compliant;, it’s making it a worthwhile experience. We can’t afford not to do that because it’s a really important issue,” Guimaraes said. “And while everyone’s doing it because of legal push, it’s really better for the customers, and it’s the right thing to do.”

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