2019 Accessibility Lawsuits
More than 2,000 digital accessibility lawsuits were filed in 2019, matching the number filed in 2018. 2020 does not appear to be giving any relief from these legal actions. Looking back at the previous year, there are lessons to be learned about how people are affected when any industry fails to make its digital resources accessible. Like all of us, people with disabilities use the internet to access products and services. When their access is blocked, requests for timely usable solutions are often met with silence, delays or a failure to resolve the issues. When these are the results, people with disabilities resort to their only recourse: lawsuits that can recognize and address their needs.
Beyonce fan Mary Connor is blind and loves music. Connor filed a suit against Beyonce’s Parkwood Entertainment after she tried to make a purchase on Beyonce’s website, only to find that it was not accessible to her screen reader. Many images on the site were not accompanied by text descriptions and lacked accessible drop-down menus, links, and keyboard navigation. Connor has requested that Parkwood Entertainment make their site accessible and also provide compensatory damages to anyone who was unable to access the website.
Henry Tucker, a blind Manhattan resident, filed suit against numerous New York art galleries because their websites were inaccessible to his screen reader software. Art, like all images online, can be made accessible to everyone by adding descriptive text to the HTML coding of the website. Tucker went through the alphabet, suing galleries with inaccessible websites methodically from A to Z. While some gallery owners and critics claim these lawsuits are frivolous or exploitative, experts remind businesses that those with visual impairments are interested in culture just like sighted individuals are, including enjoying and purchasing art.
There has been a debate in recent years about whether or not websites should be considered places of public accommodation and subject to Title III of the Americans with Disabilities Act. While the Department of Justice has been asked to clarify the issue many times, it has never provided any clear ruling on the subject until the recent Robles v. Domino’s Pizza. Plaintiff Guillermo Robles was unable to order a pizza using the Domino’s website or app. Court decisions have flip-flopped back and forth since 2016 (first the case was thrown out, then appealed in favor of Robles). Finally, the case landed on the desk of the Supreme Court in 2019. The case was thrown out of the highest court without comment. SCOTUS’s silence speaks volumes– by declining to hear the case they are communicating that they have no need to hear it because they agree with the decision of the 9th Circuit Court of Appeals. In this case, the Circuit Court decided that yes, Domino’s should have made their website accessible to all patrons, like Robles, because a website that provides a service rendered by the “place of public accommodation” should also be considered a “place of public accommodation.” This decision creates a precedent for the entire 9th Circuit Court of Appeals and any website which is accessible to people living in that court’s jurisdiction. This decision is even more wide-ranging because most websites, regardless of where they’re physically located, are available to anyone living anywhere, including the district covered by the 9th Circuit Court.
Harvard has long been a beacon of excellence in education and has attempted to make that excellence available via online videos and audio content. While Harvard’s goal was to create accessible ways for the general public to learn, the audio and video resources often included incorrect or incomplete captioning, or left captioning out altogether, making these valuable resources were unusable for students who are deaf or hard of hearing. The National Association of the Deaf (NAD) headed a class-action lawsuit against the institution for failure to make their content accessible. In response, Harvard worked with the NAD to develop and implement a series of guidelines that go above and beyond their standard accessibility policy and ensure all video and audio content is captioned correctly. These guidelines can provide a blueprint for other institutions of higher education so that more educational and research content is available to everyone.
School Admissions Testing
The Law School Admissions Council (LSAC) will be redesigning the Law School Admissions Test (LSAT) to better accommodate all students in response to a lawsuit filed by blind plaintiffs. The LSAT is mandatory for students wishing to attend law school. Angelo Binno and Shelesha Taylor are two blind test takers who were unable to draw diagrams necessary to successfully complete the analytical reasoning portion of the test. Binno and Taylor petitioned the LSAC to skip that portion of the test, and LSAC denied their request for accommodation. In response, they filed a lawsuit alleging that the LSAC’s failure to accommodate them violated the ADA, and settled in October of 2019. Because the analytical reasoning section is a crucial skill measured by the test, the LSAC will develop other ways to assess that skill so that all aspiring law school students can have a fair chance at completing the entrance exam. Kristen Marcell, an LSAC representative, says, “LSAC’s mission is to expand access to justice by helping to create a legal profession that truly reflects the breadth and diversity of our society.”
The Certified Public Accountant (CPA) Exam is a required test for students who have graduated and wish to pursue careers as accountants. While the CPA exam did provide accommodations for people with disabilities, they were often not methods by which test-takers normally accessed written content. Commonly used accommodations such as screen-reading technology and magnification were not included as options. In response to allegations that the American Institute of Certified Public Accountants (AICPA) and the National Association of State Boards of Accountancy (NASBA) discriminated against disabled test takers by failing to accommodate medically recommended assistive technology, the AICPA, and the NASBA have made assistive technology such as screen readers and magnifiers available for all sections of the test as well as for the reference materials which can be used during the test. This allows test takers to be accurately assessed on their knowledge, regardless of their disability, while maintaining their privacy and independence.
California state government spent $66 million for a new state park reservations website, only to discover when a blind website user was unable to use the site, that their website still wasn’t accessible to everyone. The State of California sought injunctive relief on behalf of a blind representative plaintiff, Bryan Bashin. Bashin, an outdoor enthusiast, should have been able to easily access the newly renovated website for camping and lodging locations within California’s parks but was disappointed to learn that the website was completely unusable with his screen reader. The California Department of Parks and Recreation had written numerous accessibility requirements into its multi-million dollar website redesign contract with Conduent, a Xerox company. Two years after the original complaint was filed Conduent still failed to make the website compliant with WCAG, and Mr. Bashin and TRE Legal Practice mandated that Conduent remove all accessibility barriers and refund money accepted fraudulently through false assurances.
Being unable to drive due to visual impairments does not prevent someone from owning a car, or buying vehicles for friends, family, or a business. In Florida, blind plaintiff Juan Carlos Gil sued fifty AutoNation Inc. dealerships for having inaccessible websites. Web accessibility can be challenging for car dealerships because many of their websites are built by third-party companies and must include content provided by automakers and ever-changing car inventory pages. AutoNation was able to settle the case with nominal fees, covering court costs and legal fees, and agreeing to improve website accessibility. Experts now encourage dealerships to negotiate accessibility features with their outside website design vendors.
The Lesson of Accessibility Lawsuits
No industry is exempt from digital accessibility. Courts, including the Circuit Courts of Appeals, and by its refusal to hear the Robles case, the Supreme Court, have held that websites, especially those with a nexus to a place of public accommodation, must be made accessible to all visitors. If you aren’t sure whether your industry is covered by this law, err on the side of caution and make your website accessible. You will reach a broader audience and help prevent lawsuits in the future.
Not sure where to start? Contact us!