Example Legal Action Against Inaccessible Websites

May 23, 2017 |

In the absence of specific regulations for web accessibility in the Americans with Disabilities Act (ADA), businesses are left without legal guidance on how to make their complex websites accessible. Some advocate for full compliance with WCAG 2.0 in all content while others argue that nothing is required at all.

Advocates and organizations have increasingly focused on ensuring web accessibility within the last decade. This trend reflects the increasing importance of the internet in modern life and the development of clear accessibility standards and guidelines for accessible web design, such as the Section 508 Standards and the Web Content Accessibility Guidelines 2.0 (WCAG 2.0). In recent years, global regulations are converging upon WCAG 2.0 standards, as seen in the Section 508 ICT refresh and the European EN 301 549 procurement directive.

Organizations continuously come under fire from accessibility advocates, and recent litigation is targeting compliance with WCAG 2.0 Level A and AA. Prior to 2013, website accessibility cases were filed on a fairly sporadic basis and most of these complaints involved large disability rights groups. However, website accessibility litigation has seen a dramatic spike in activity over the past several years. In fact, Law360 reported that over 240 such lawsuits were filed in 2016, principally in the retail, hospitality and financial services industries. These lawsuits allege violations of the ADA for failure to maintain websites that are accessible to the blind and visually impaired.

Example legal action against inaccessible websites

There are relatively few complaints that start and end with web accessibility. Of these, fewer still give an adequate description of the problems that led to the complaint. High profile disputes are making web accessibility a priority.

  • Shields v. Walt Disney Company (2011). Three women with visual impairments sued Walt Disney Company, alleging that its facilities and websites were inaccessible to people with vision impairments. The complaint focused on the lack of audio controls for video and audio trailers (making it impossible to hear audio output from screen readers) and the site’s extensive use of Flash content.
  • A discrimination suit filed on November 6, 2015 seeks a court order that would require the NBA to redesign its website to become more compatible for screen reader users.
  • OCR Opens Investigations. In May 2016, the U.S. Department of Education’s Office for Civil Rights (OCR) has recently opened as many as 350 nationwide investigations to determine whether educational agencies’ websites are compliant with the ADA.
  • Gil v. Winn Dixie (2016). The Plaintiff, who is blind, was unable to access The Winn – Dixie Stores website using his screen reader. The DOJ filed a Statement of Interest in the case pending in the Southern District of Florida and argued that “Title III applies to discrimination in the goods and services ‘of’ a place of public accommodation, rather than being limited to those goods and services provided ‘at’ or ‘in’ a place of public accommodation.” The DOJ also argued Title III’s application to the website at issue is consistent with every other court decision to have addressed the coverage of websites with a nexus to brick and mortar locations. The DOJ went on to state its view that even websites with no nexus to a brick and mortar location are also covered under Title III of the ADA – a position that has been previously rejected by the Ninth Circuit.
  • Foot Locker (2016). A Pittsburgh-based law firm filed a lawsuit against Foot Locker, Inc. asking the District Court to find a valid claim of discrimination under Title III of the ADA when a public accommodation utilizes a website that is not usable by customers who are blind or visually impaired.
  • Cullen v. Netflix University (2011). Deaf consumers filed suit in Federal court alleging that Netflix failed to provide captioning of its online video content and misled deaf and hard of hearing customers on the availability of captioned content from Netflix.

Download the whitepaper on Four Key Issues that Attract Web Accessibility Litigation (And How to Solve Them) for a brief overview of some of the litigation that is driving organizations to take web accessibility seriously. It offers information on the four accessibility violations that almost all complaint letters include and advice on how to solve them.

Four-Key-Issues that Attract Web Accessibility Litigiation and how to solve them. Download the whitepaper button

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Ken Nakata

Ken Nakata, JD, CIPP/US is the one of the most well-known attorneys in the area of IT accessibility and is the Director of Cryptzone’s Accessibility Consulting Practice (ACP). Nakata’s work focuses on Web and software accessibility from both a legal and technical perspective. Nakata’s ACP team helps organizations manage the change towards accessibility in all aspects, providing consulting services aimed at shaping their accessibility policies and practices, and evaluating the overall state of their Web properties leveraging Cryptzone’s accessibility solutions. He is also a board member for the International Association of Accessibility Professionals (IAAP),of which Cryptzone is a founding member.

Nakata worked for twelve years as a Senior Trial Attorney with the U.S. Department of Justice. He has argued on behalf of the United States government many times before the federal courts and has helped shape the government’s policies for the Americans with Disabilities Act and Section 508 of the Rehabilitation Act. Nakata also worked as Director of Accessibility and Government Compliance at BayFirst Solutions, a Washington, DC consulting firm.

In 2000, Attorney General Janet Reno presented Nakata with the Attorney General’s Award for Excellence in Information Technology. In addition to practicing law, Nakata is active in software and web-based technologies, including Java, JavaScript, SQL, and ColdFusion. In July 2001, he was certified by Sun Microsystems as a programmer for the Java 2 Platform. Nakata is a frequent speaker on both law and technology and is equally adept at conducting one-on-one workshops with programmers and developers as well as explaining law and policy to large audiences. He holds a Bachelors of Art degree in mathematics from John Hopkins University and a Juris Doctor degree from the University of Pennsylvania Law School, and is admitted to the bars of New York, the District of Columbia, Pennsylvania and Washington.

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