Web Accessibility – The Legal & Litigation Reasons for Breaking down Barriers

January 5, 2017 |
PowerPoint slide Web Accessibility: A Program to Reduce Litigation Risk

In this blog I’d like to review key laws, and anticipated changes, that are driving a lot of website accessibility litigation. Knowing about these laws, and which apply to your organization, can help guide your website accessibility practice.

Most of us are familiar with laws like the Americans with Disabilities Act. When we go to a shopping mall, we expect to see accessible parking spaces; when we go to a store, we expect to see a ramp in addition to a set of stairs at the entrance. Without these accessibility improvements, there are physical barriers for people with mobility impairments. There are also communication barriers – for instance, if a sign language interpreter isn’t provided at a major event or movies aren’t captioned – that create barriers for people who are deaf. Similarly, when audio isn’t provided for printed text, a barrier exists for people who are blind.

These barriers exclude people with disabilities from being able to access the goods and services of a business or a government agency. Communication tools like captioning, speech output, etc. are really important for helping us get around those barriers. And they’re really important as a matter of civil rights for people with communication disabilities.

Litigation is on the Rise for Web Accessibility in Private and Public Sectors

It’s these communication barriers that we’re really focusing on when we’re talking about web accessibility. If you are blind for example, you’ll use a screen reader to access the goods and services of a web page or a website such as Amazon.com. The screen reader will read out the elements on the screen and if those elements, such as a picture, or a table or form, aren’t designed correctly, then the screen reader will not read information out properly for a person who is blind. And here you have a barrier for people with disabilities.

Americans with Disabilities Act

In light of those communication barriers created on the web, private litigants are applying the Americans with Disabilities Act to sue private companies as well as state and local governments. There are law firms that have literally sued thousands of organizations– from small convenience stores to major corporations.

DOJ Project Civic Access

In addition, there’s increased enforcement from the Department of Justice (DOJ) targeting both large and small organizations in private and public sector. A lot of the DOJ’s settlement agreements involve what they call Project Civic Access, a wide-ranging effort to ensure that counties, cities, towns, and villages comply with the ADA by eliminating physical and communication barriers that prevent people with disabilities from participating fully in community life. The DOJ will look into a state or local government’s physical barriers and as part of settlement agreements, they’ll include terms that include web accessibility.

Office of Civil Rights at the Department of Education

There are also more investigations from the Office of Civil Rights at the Department of Education. I recently presented alongside OCR at the Accessing Higher Ground in Denver, Colorado. My co-presenter mentioned during the presentation that just one OCR complainant had filed more than 600 complaints herself. Several other complainants had been filing dozens of complaints. Thousands of these complaints focus on web accessibility around the country and involve school districts and individual schools, as well as colleges and universities.

OCR is also different from the Department of Justice because OCR has to investigate every complaint they receive. By contrast, the DOJ can pick and choose which cases to investigate. So OCR has been extremely busy dealing with web accessibility because of these complaints about school districts and colleges and universities.

WCAG 2.0 Complicates Matters

To complicate matters, WCAG 2.0 is not exactly easy reading. At first blush, you’ll know it’s a really complicated document. There are four levels of granularity from the overarching four principles, to the 12 twelve guidelines, to the 38 success criteria, to the techniques used at a further level of granularity.

For all these reasons, you can see why web accessibility is a troubling problem in this day and age.

The Legal Background for Web Accessibility

It might help to start with a brief overview of how the Americans with Disabilities Act addresses web accessibility. And for today’s blog, I’m not going to cover all the state laws. I will however address California’s Unruh Act, because it has significant liability issues, particularly for the private sector.

Title III of the ADA

The Americans with Disabilities Act (ADA) was passed in 1990. It was signed by President George H. W. Bush, and has been described as the most sweeping civil rights law since the Civil Rights Act of 1964. Title III affects places of public accommodation (read: private businesses). There are 12 broad categories of private businesses covering just about any kind of business that provides goods and services to the public. Title III of the ADA includes broad nondiscrimination requirements prohibiting any kind of discrimination against people with disabilities.

Among those many nondiscrimination requirements, the one that we’re focusing on today is the effective communication requirement. Basically, it states that you need to ensure effective communication with people with disabilities, unless doing so would either impose an undue burden or create a fundamental alteration of your goods and services.

Tweet this: You need to ensure effective communication for people with disabilities #ADA #ADATitleIII @KenNakataTweet: You need to ensure effective communication for people with disabilities #ADA #ADATitleIII @KenNakata https://ctt.ec/u5rv0+

The DOJ has a number of cases and technical assistance materials that point out that “effective communication” is very stringent requirement in a lot of cases, but it’s also a very flexible requirement.

There are also new DOJ rules that are coming out specific to the web, but these rules are a long way off as they’re still at the advanced notice of proposed rulemaking stage. This means we are at least a year or two away from seeing even a draft regulation.

In addition to Title III of the ADA, I mentioned discussing the California Unruh Act. Unruh is extremely tough. Under the ADA, you can only receive injunctive relief and attorney’s fees. However under the Unruh Act, you can attain liquidated damages of $4,000 per claim, or if you can identify how much your damages are, you are entitled to triple that amount. Basically you can start by thinking that damages start at $4,000 per claim, and lawsuits result in considerable multiples of claims. The way that plays out, however, it usually isn’t just a $4,000 lawsuit we’re talking about but considerably more than that.

A perfect example of this is the NFB v Target Corp case. The National Federation of the Blind sued Target settling for $6 million to resolve the lawsuit. The blind complainants from California went to the Target website and if they couldn’t buy a bottle of detergent, for example, because the shopping cart system wasn’t accessible, that resulted in a $4,000 claim.

It isn’t entirely clear what constitutes a violation for the purposes of Unruh. Some California plaintiffs argue that every single area of your website that isn’t compliant could constitute a violation. Potentially one complainant could generate a million dollar lawsuit against an organization if they find several thousand areas of noncompliance. We don’t exactly know how the term ‘violation’ is really defined under Unruh because most of these cases settle out of court. Suffice to say that, under Unruh, the stakes go up considerably.

Title II of the ADA

Now let’s talk about a slightly different topic – Title II of the ADA covers any state or local government or agency. Thus, Title II covers any city government, state government, state college, or state agencies. The key concept under Title II is what we call program access. You need to ensure that all your program services and activities don’t discriminate against people with disabilities. Generally, your program services need to be just as accessible to people with disabilities as they are for people without disabilities.

There are a number of paragraphs in Title II of the ADA that discuss all the different ways in which discrimination can occur in your programs and activities. There’s one section that talks about an existing facility – your programs have to be accessible “when viewed in their entirety.” You need to consider all the different ways you can access a program, service, or activity. Ask yourself, “What are all the different ways it can be accessed?” And “Is there a way that’s universally accessible?” Again, we have this concept of effective communication. Just like under Title III of the ADA, “program access” is a stringent requirement, but also fairly flexible. There are new rules for state and local government websites due to be released for Title II but they are still a long ways off (although they will probably come out before the Title III regulations for websites).

The Legal Side of Web Accessibility Applied

A quick example of how program access and effective communication work under Title II is the case Martin v. MARTA.

It is a case that was decided in 2002 from the Northern District of Georgia. In this case, a blind plaintiff sued the Metropolitan Atlanta Regional Transit Authority (MARTA) claiming that he wasn’t able to get information for going between two different points in Atlanta through the various transportation modalities (buses, subways and trains). This information was easily available to non-disabled passengers within Atlanta. So there’s your program – accessing transit information for going between two different points in Atlanta.

The defendant, MARTA, argued that it offered transit information in a number of different ways. It said it was happy to provide a braille schedule of all the different transportation buses that go by the plaintiff’s house and the subway stations that they connect to. They also offered a telephone number that the plaintiff could call and ask about transit information. And, of course, the defendants said that the plaintiff could always go to their website to get this information.

The plaintiff rebutted that when he called the telephone number, no one answered the phone. The braille schedule takes forever to receive and by the time he got them, they are no longer current.  Lastly, the website was inaccessible. The judge ruled that given the circumstances in this case, program access requirements weren’t being met.

Many advocates use Martin v. MARTA as a justification for asserting that websites always have to be accessible. Actually, the court didn’t quite say that, instead Martin v MARTA says one of those modalities has to be accessible. Had they made their website accessible, they probably would have satisfied the accessibility requirement.

Concluding Thoughts

As the population ages, increasing numbers of people who want to use the internet also have disabilities. Ensuring websites are accessible for people with disabilities is becoming more and more important. So-called “ADA Letters” – letters sent by law firms alleging individuals with disabilities are denied access to an organization’s goods and services because of inaccessible websites – are increasing in number rapidly. It’s becoming a real problem. All kinds of commercial organizations like banks, hospitals, retailers, real-estate agents, as well as educational institutions, and even state, local and municipal governments are becoming ensnarled in website accessibility litigation.

The good news is there are some very tangible steps you can take to reduce your website accessibility litigation risk. I’ve put together a web presentation that outlines steps others have followed and what you should be thinking about. Watch it here.

Image Website Accessibility Program to Reduce Litigation Risk

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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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