New Balance, Perry Ellis Class Actions Say Websites Violate ADA

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A visually impaired plaintiff from Florida is suing two online retailers, alleging their websites fail to accommodate his disability as required by law.

Plaintiff Andres Gomez is bringing two separate lawsuits against Perry Ellis Menswear LLC and New Balance Athletics Inc., respectively. The defendants sell clothing via their websites originalpenguin.com and newbalance.com.

Gomez says he is legally blind and therefore has a “qualified disability” under the definition of that term in the ADA. To use the internet, he says he uses JAWS Screen Reader software, which allows visually impaired persons to overcome website inaccessibility and use websites they wouldn’t otherwise be able to read.

However, both the New Balance and Original Penguin websites fail to integrate with Gomez’s screen reader software, he says. Neither did those websites offer him any alternative means to accommodate his visual impairment, he alleges. Gomez says in both cases, website inaccessibility left him unable to use the websites as a person with normal vision would be able to.

The plaintiff argues that the ADA requires the defendants to address website inaccessibility because their websites constitute a “place of public accommodation” within that term’s meaning under the ADA. He also frames the websites as being extensions of the retailers’ brick-and-mortar retail locations, which are also places of public accommodation under the ADA.

As places of public accommodation, Gomez argues, these websites must offer disabled persons equal enjoyment of their goods and services. To that end, defendants are under an obligation to make reasonable accommodations in those websites for their visually impaired customers, he says.

In addition to website inaccessibility caused by the alleged incompatibility between the websites and the screen reader software, Gomez lists several specific shortcomings of these websites that he says contribute to their inaccessibility. He cites a lack of alternative text for images, and what alternative text may be there he says is insufficient or contains extraneous information.

The lawsuit also claims that the websites contain some links that have no text and that other adjacent links lead to the same web address. Gomez says the websites may feature Flash content, which he says is prone to making the website inaccessible.

Gomez is proposing to represent a plaintiff Class that would encompass more than 6.6 million visually disabled persons throughout the United States and over 400,000 such persons within the state of Florida.

He seeks a court order requiring both retailers to make their websites fully accessible to persons with visual disabilities. Gomez asks that the order bar both retailers from operating their websites until they are made adequately accessible. He also seeks an award of compensatory damages, costs of litigation including expert witness fees, and reasonable attorneys’ fees.

In both cases, Gomez is represented by Scott R. Dinin Esq.

The New Balance Disability Discrimination Class Action Lawsuit is Andres Gomez v. New Balance Athletics Inc., Case No. 16-CV-21571, in the U.S. District Court for the Southern District of Florida.

The Perry Ellis Disability Discrimination Class Action Lawsuit is Andres Gomez v. Perry Ellis Menswear LLC, Case No. 16-CV-21587, in the U.S. District Court for the Southern District of Florida.