It’s almost unheard of to do business without a website that can reach out to, inform, entice and serve customers. Right now, there are almost half a billion active websites in existence. For these websites to be inclusive and non-discriminatory, they must be accessible. They must be free of barriers that would make it difficult or impossible for people with disabilities to make use of them. In the U.S. (and other countries too), several laws make web accessibility a requirement.
When a company’s website is not accessible, there are several possible consequences. The loss of potential customers is automatic, since a segment of the marketplace has not been considered or accommodated. That segment is larger than you may think: about one in five Americans has some kind of disability, and their disposable income is estimated at over 645 billion dollars annually. Combine that with the spending power of their 105 million friends and families, and it ought to be an irresistible market.
A less accessible website also tends to rank more poorly in search engines, which means the company may also be losing potential customers who have no disabilities. Beyond that, official complaints may be filed against the company. Funding may be lost, if that funding was contingent on implementing accessibility. The website owner may face financial penalties.
Then there’s the possibility of a lawsuit.
Web Accessibility Lawsuits in the U.S.
All people have the right to be treated equally, and no one should be discriminated against simply because they happen to have a disability. Many laws in the U.S. support this right. If you violate one of these laws, then you can find yourself at the defensive end of a lawsuit.
Last year, according an analysis by international legal firm Seyfarth Shaw1, at least 814 federal lawsuits – and probably more – were filed in response to web inaccessibility. (The federal law, the Americans with Disabilities Act (ADA), indicates in Title III that services available to the general public cannot exclude people who happen to have disabilities.) This collection includes 335 cases in New York, 325 in Florida and 58 in Pennsylvania, to name a few.
Seyfarth Shaw determined that an additional 115 lawsuits had been filed in California’s state court, and at least 6 more in New York. Both these states have their own laws banning discrimination. In California, it’s the Unruh Civil Rights Act; New York has a New York State Human Rights Law.
That means that at least 935 lawsuits, and likely a higher number, were launched last year specifically because companies failed to make their websites accessible to people with disabilities.
Over the years, web accessibility lawsuits have also been filed in response to violations of Section 508 of the Rehabilitation Act. Section 508 requires departments and agencies of the federal government to ensure that the ICT (information and communication technology) they procure and use is accessible. Legal action has been taken against the Social Security Administration and the Department of Homeland Security, for example.
Are These Lawsuits “Frivolous”?
You may have heard companies or politicians talk about ADA lawsuit “abuse” and “drive-by” litigation, or make claims that this kind of litigation is “frivolous.” It is misguided and unfair to describe most ADA lawsuits this way.
Unfortunately, this view can be perpetuated in media. When a 60 Minutes segment on the issue aired in 2016, disability rights lawyer Lainey Feingold criticized it for being one-sided: “Anderson Cooper, the show’s host, did not mention a single ADA lawsuit he thought was valid, a single ADA lawyer he believed scrupulous. He did not interview a single disabled person whose ADA claim he found to be meritorious. No disabled activists were interviewed,” Feingold wrote. Without hearing the full story, many 60 Minutes viewers might have been led to believe that all ADA lawsuits are without merit.
First, it’s important to understand that web accessibility is anything but frivolous. Disabilities commonly affect the way people go online. Instead of typing on a keyboard, some individuals may use toggle switches or voice input. Instead of looking at images, they may only be able to read the text on the page, using screen-reading software. Or they may need to magnify a web page before they can read it. If a website hasn’t been designed to be accessible, these methods of using the Internet may not work.
If you don’t have disability-related experience, just think about how lost you’d be if you couldn’t quickly look up the arrival time of the next commuter train on your smartphone, or consult the weather forecast as you’re headed out the door, or double-check your bank balance online. Without web accessibility, millions of people with disabilities are denied these simple conveniences. Frivolous? Try frustrating.
As we noted in a previous post, by and far the majority of ADA lawsuits have been anything but trivial. They have been triggered by very real digital barriers that have been placed in the way of ordinary individuals who happen to have disabilities.
Keep in mind, too, that when plaintiffs file federal lawsuits under the ADA, they cannot sue for monetary damages. They can only seek reimbursement of their legal fees as well as remediation of the inaccessibility in question. Clearly, they aren’t launching litigation because they’re looking for some quick cash. The reason they sue is to compel a business that has been in violation of federal law to change its discriminatory practices.
How Have the Defendants Fared?
The Department of Justice (DOJ) has made it clear, through a series of findings and settlement agreements2, that web accessibility (or an equivalent option that’s just as good – available around the clock, able to be used independently, and so on) is expected and mandated as part of compliance with the ADA.
Tax preparer H&R Block was ordered to improve the accessibility of its website and apps. The National Museum of Crime and Punishment in Washington, D.C. has had to fix the inaccessible features on its website. Several communities have had to remove barriers from online employment postings (under Title II, state and local governments must also ensure equal access to their public services and information).
In all these cases, the defendants have been told to follow the technical requirements of the Web Content Accessibility Guidelines (WCAG)4 2.0, Level AA.
Last year, in what is believed to be a first, an ADA lawsuit concerning web accessibility went to full federal trial. Juan Carlos Gil, who has a vision disability, had sued supermarket chain Winn-Dixie because its website could not be used with a screen reader. On June 12, 2017, the plaintiff won.
In 2016 in California, Bag’n Baggage was found to be in violation of the Unruh Civil Rights Act. The company was ordered to pay $4,000 in damages to the plaintiff, who hadn’t been able to shop independently on the inaccessible website, as well as remove the web barriers.
What can we expect going forward?
Rulings and settlements typically point to WCAG 2.0, Level AA, as a universally accepted standard of web accessibility. Any company that is proactively striving for online accessibility should be complying with this standard.
In 2010, the DOJ published Advance Notices of Proposed Rulemaking (ANPRM) indicating that it might add specific web accessibility requirements to Titles II and III of the ADA. However, these were withdrawn in December, pending “additional review of data and further analysis3.”
This doesn’t mean there won’t be any web accessibility standards to follow. More likely, WCAG 2.0, Level AA – or the new WCAG 2.1 update – will continue to be referenced in settlement agreements. In fact, since the new Section 508 requirements mirror the up-to-date requirements of WCAG, the expectations for accessibility under Section 508 now encompass more areas and more disabilities than they did previously.
It also doesn’t mean there will be fewer web accessibility lawsuits. On the contrary, legal experts believe that without clear regulations around the requirements of websites to be accessible, there will be more confusion – and more litigation.
Organizations that make an effort to comply with the technical requirements of WCAG 2.0 (or 2.1), Level AA, will, of course, protect themselves against this kind of legal action. Even better, people with disabilities who visit their websites will feel welcomed – and will be able to interact online with ease.
Not sure how to bring your digital properties into compliance?
An Innovative Solution
eSSENTIAL ACCESSIBILITY has developed a comprehensive accessibility solution to help organizations follow the Web Content Accessibility Guidelines (WCAG) and achieve and maintain compliance with standards and regulations. This includes integrating web compliance evaluation and remediation services with assistive technology to deliver a transformative experience for people with disabilities. Learn more about eSSENTIAL ACCESSIBILITY’s innovative solution.
- 2017 Website Accessibility Lawsuit Recap: A Though Year for Business Seyfarth Shaw, 2018
- Enforcement Activities ADA.gov, 2018
- Nondiscrimination on the Basis of Disability; Notice of Withdrawal of Four Previously Announced Rulemaking Actions Federal Register, 2017
- 60 Minutes Slams ADA, Boosts Trump AgendaLaw Office of Lainey Feingold, 2016