Accessibility on the web has been a huge deal for a long time now. One of the first big legal cases involving a plaintiff suing a business because their website did not make accommodations for the blind started in 2016 with a decision in favor of the plaintiff a year later. Many more followed, and judges have been siding with plaintiffs by ruling that the Americans with Disabilities Act (ADA) applies to “places of public accommodation”. A company’s website nowadays is an extension of their physical store, offering services that a store offers or additional services that a store does not. Either way, they have been judged the same as a physical location without a wheelchair ramp, proper handrails, or designated parking spots.
The legal argument in the Winn Dixie supermarket case set the standard for how the ADA has been used to judge virtual online stores that are an extension of the physical location and services:
“Although Winn-Dixie argues that Gil has not been denied access to Winn-Dixie’s physical store locations as a result of the inaccessibility of the website, the ADA does not merely require physical access to a place of public accommodation,” [the judge] wrote. “Rather, the ADA requires that disabled individuals be provided ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.’”
Businesses Deal with Spurious Litigation
Since it has been shown that these cases can win, there have been a spurt of lawsuits in Florida and New York, mostly, in the past year. Lawyers and serial-plaintiffs have taken many cases to court in the hopes settling for fees and restitution. Some awards have gotten very large. Businesses have started to get scared.
Serial-plaintiffs have gotten so effective, and found support amongst a certain subset of lawyers that businesses of all striped have gotten scared — real scared. So much so, in fact, that I have heard personally from an artist client in New York City and an e-commerce client on a well-used and well-supported web platform that one of their greatest fears lately is being sued for their website. You might think that an individual artist who sells a painting for a few thousand dollars would be too small of a target for a serial-plaintiff, but he was scared because his friends and art galleries in his community have been sued, and he figures it is just a matter of time. Both people have expressed that they would rather shut their websites down than settle out of court or go to trial. They would rather take their business offline than give any money to a path of lawsuits that have gotten out of hand.
The Increase is Real
Since two anecdotal examples are not enough, here are some numbers to back it up.
- Lawsuits increased from 814 in 2017 to 2258 in 2018 — an increase of 177%. Source
- In one filing, a single plaintiff brought suit against 50 colleges in late 2018 for non-compliance with the ADA. The colleges are located all over the country, but because they recruit students from New York, it has been argued, they can be sued in New York. Five other colleges were sued by the same plaintiff earlier the same year. Source
- Of note, since we mentioned New York, out of the 2258 lawsuit filings in 2018, 1564 were in the state of New York. Source
- More than 100 lawsuits have been settled in New York City aimed at art galleries with an average cost of $15,000. These suits were all brought by 2 individuals. Source. This led to a report entitled “Serial Plaintiffs: The abuse of ADA Title III; An in-depth look at how plaintiff’s lawyers exploit a law with good intentions”
- In Austin, Texas, one lawyer was fined and suspended from practice for filing approximately 385 lawsuits on behalf of one disabled client alleging technical violations of the ADA. Source
- Related: ADA lawsuits that address both website and physical location accessibility have also increased year over year since 2013, with 7663 cases in 2017 and over 10,000 cases in 2018. Source
The Crux of the Problem
I do not want to give the impression that I am against the enforcement of the ADA as it pertains to websites. I agree that a company’s website is an extension of their physical locations, and further, companies that do not have brick and mortar stores need to also comply with the law. It makes good business sense, as you increased the number of people who can spend their money with you and receive your services, and it is the humane thing to do. To leave a certain type of person out of your product or content or experience is to split out world further into the haves and the have-nots.
Now, some litigation can be a good thing. If laws do not have teeth and people who do not follow the law do not get punished, no one will spend the extra time and investment to comply with the laws. The original ADA became law in 1990 but it took years and years and lawsuits after lawsuit to force businesses to comply. A fire under their butt was a good thing, and arguably, we are all the better for it. Someday, your youthful body with not be so youthful, or someone you love will become differently-abled through no fault of their own and we will have a new gratitude for handrails, ramps, and websites that support keyboard navigation.
In short, we take our abilities for granted. A disabilities are more than blind, deaf, or wheelchair-bound people. They are temporary (broken bones), they are mild (color blindness), they are cognitive (sleep deprivation, chemical-induced), or they are degenerative and changing (vision, hearing, or cognitive problems due to age or degenerative diseases).
On the other hand, a spate of litigation that takes advantage of the fuzziness of current law, as well as the lack of seriousness that some businesses have placed on being compliant does nothing to further the cause of creating a greater understanding of what accessibility means and why it is important to do it. It makes people feel lie shutting down instead. It breeds resentment — between the businesses and these hyper-litigious individuals and between the general public and the accessibility cause. Suddenly, these laws are seen as needless, arbitrary, and expensive. They become another tax on the small business once the larger pockets have been picked.
How did we get Here?
Let’s take a step back into the history a little bit, and how we got here.
George H.W. Bush signed the ADA into law in 1990. It’s roots went further back, though, into the Rehabilitation Act of 1973. Section 504 banned discrimination on the basis of physical ability and was applied to the recipients of Federal funds. Section 508 is a similar set of legislation that may sound more familiar, and it was meant to ensure that any information available to able-bodied people was also available to those with different abilities. This was enacted way back in 1998, and came alongside other efforts like the Website Accessibility Initiative in 1997 which intended to put a framework around best practices in web development to accommodate those who needed to use assistive technology.
Enforcement of the ADA and Section 508 is handled by the Department of Justice. The acknowledged that the web has evolved into something bigger and more entrenched than they envisioned 20 years ago, so, in 2015 they announced that they planned to amend the language of the ADA to include websites under the statute. On January 5th, 2017, they released the “508 Refresh” and declared the WCAG 2.0 levels A and AA as the minimum compliance levels for public-facing content. Federal agencies and those doing business with Federal agencies had to comply with these new rules.
It was widely believed that the DOJ was going to follow the 508 Refresh with a refresh of the ADA itself, as they promised in 2015. You might guess what happened — 2016 and the election of Donald Trump happened.
With Executive Order 13771 signed 10 days after his inauguration, federal agencies now had to remove two regulations before proposing a new one. That new regulation had to also be net-zero cost-wise Source. This led to a near complete halt on all new regulations across all agencies Source.
The clarifications that the industry needed from DOJ died on the vine.
New regulation is not the enemy — Bad regulation is
The idea that any regulation is bad is foolhardy. In this case, the Department of Justice has been unable to clarify how the ADA applies to websites. To fill the vacuum, states have stepped in with the own interpretations. In some cases, this is great — states tend to legislate more from the ground up than the federal government does. Most of them have adopted the standards that the DOJ were going to formalize, namely WCAG 2.0 A and AA.
If you are a business, how do you comply with a set of laws that are vague about their application? Title III of the ADA does not provide guidance for how a web-based operation should be accessible, but it does not limit its coverage to brick-and-mortar establishments either.
Specifically, “places of public accommodation” is the language that opens up to interpretation. When the law was drafted, the internet was not yet a place of “public accommodation”. It was still relatively small and catering to a smaller (and more affluent, generally) audience. 15-20 years later and the internet has ingrained itself in our lives. Is it now a place of public accommodation? Many courts think so. Was that what the original law intended? Maybe not. The authors have been silenced in the meantime.
This uncertainty is what unscrupulous lawyers have been taking advantage of. Further, the landmark Winn-Dixie is still in the appeals process. Winn-Dixie is arguing that websites are not places of public accommodation, and that application of the WCAG as a guidelines violates due process because it is not law. The Eleventh Circuit court is still deciding the case.
While state’s rights can be a powerful way to drive national policy, in this instance, it leads to bifurcation and confusion. If states continue to lead the way in enforcing accessibility laws, how is an online entity that conducts business in multiple states — the internet is the same everywhere, after all — comply and keep up with the most stringent rulings in one or two states? Who wins the race to be the state that drives accessibility standards?
Some clarification from DOJ has entered the record
The DOJ went on record saying that they were going to do something, then did not follow through. In June 2018, 103 members of the US House of Representatives sent a letter to then Assistant Attorney General Stephen E. Boyd requesting clarifications on what the congresspeople saw as ambiguous guidance that has “created a liability hazard that directly affects businesses in our states”.
The DOJ responded on September 25, 2018:
The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities. Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements. Absent the adopting of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA […]. Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.
Do you like how the DOJ basically throws it back to Congress at the end there, BTW?
The DOJ maintains the position that Title III can be applied to places of public accommodation, and that websites are places of public accommodation. Further, they say that this has always been the case as a way of saying “we’re not sure where the controversy is, its always been this way”. They go on to say that companies can make their websites accessible by any means, but that any existing standard right now is arbitrary. The goal of the ADA is accessibility as broadly defined, and the ways in which to make a site accessible or measure the accessibility off the site are up to you. Until Congress changes things, of course.
No silver Bullet
This statement only clears up a little of existing ambiguity. It does codify the stance that the places of public accommodation include websites, so that is one useful clarification. But the standards by which we can measure accessibility to determine whether or not someone is in compliance continues to be a huge gray area.
For lack of another widely accepted standard, WCAG 2.0 and now 2.1 remain as the go to way to measure accessibility. The DOJ has clearly stated that adherence to any written standard is not an indication of compliance or non-compliance, but it is also the only measure that we currently have.
Businesses should know and understand that:
- There is no governing-body-issued “compliance certificate” that can safeguard a business from litigation. Compliance with the law, squishy as that may sound, is the only way to protect one against litigation
- Showing good faith seems to help when cases come to court. Be up front about your company’s accessibility policy and any features on your website that do not meet standards. Those that have shown transparency and good effort to correct any accessibility problems have met with more lenient rulings
- Building a website correctly to be as accessible as possible not only protects a company from litigation on behalf of differently-able individuals, but it is also good business sense in the long run — the more people that can access your tools, services, and content, the more customers you have over time
- If you site is not as accessible as it could be, and a website redesign or replatform is in the plan soon, start to think about, define, and build accessibility into the process now
Sad State of Affairs
The DOJ, Congress, and the Trump administration have legislated in absentia. The lack of clearly defined rules and goalposts has opened a free market mentality into a legal process, which has led to states and circuit court jurisdictions defining what compliance looks like on a case by case basis. And there have been many notable cases to look at.
- Hayes v. Dunkin Donuts LLC: a plaintiff claimed that their website was not compliant with his screen reader software, and therefore could not use the store locator or purchase gift cards online. Source
- National Federation of the Blind v. Target Corp: The suit claimed that blind people using assistive technology could not purchase items online. Target settled for $3 million dollars, far more than it would have cost to correct the problems. Source
- Avanti Hotels, Hooters, Hulu, CVS: These websites were inaccessible to people who have problems seeing or hearing. Source
- Amazon, Rolex Watch, Fox News, Burger King, Nike, CNN, Porsche, Hershey, Nintendo, Pandora, Mitsubishi, Bed Bath Beyond, Dow Jones, Bank of China, Kmart, GrubHub, McDonald’s, Blue Apron, Hobby Lobby, Domino’s, Bag’n Baggage, Miami University, Reebok, the NBA, Harvard, MIT, eHarmory, Bank of America, Ace Hardware, Safeway, US Department of Education, Netflix, Walt Disney, Hilton Hotels, Charles Schwab, Staples, Rite Aid, JetBlue, Quizno’s, Arby’s, T.G.I. Friday’s, Red Lobster, Sizzler, Supercuts, J.C. Penny… Source
Instead of leading with legislation that clearly defines what the benchmarks for accessibility are, litigation is the driving factor defining accessibility and what non-compliance looks like. Perhaps this is similar to the spate of litigation that followed passage of the ADA 30 years ago when suddenly businesses needed to invest in physical amenities to comply, but elements now feel like the Wild West as well. Accessibility compliance is something that businesses should strive for, no doubt, but the lack of rules is proving to be much more expensive for businesses than if we had clearer guidelines in place. This administration’s decision that any new legislation is bad legislation hasn’t added to the costs of the Federal government, but it has added to the costs burdening individual companies.
While these larger companies listed above in large part stayed in business, how many smaller businesses have had to close their doors due to litigation? How many companies are being willfully negligent in their approach to web accessibility? It seems as though the genie is out of the bottle here, and it is running amok without a way to slow it down, let alone stop it. And that’s just plain sad.