ADA compliance lawsuit

[keyserholiday]

I just saw my first case of a company being sued over ADA compliance. The business in question has until June 1st to bring all of their websites into compliance.

To be in compliance they need to
1. add alt image tags, which should have already been done.
2. Remove 360 tours
3. Videos need closed captioning and a video transcript

Make sure you and your clients are adhering to these best practices to avoid a lawsuit and major headaches.

 

[Yan Gilbert]

What industry is the website?

 

[JoyHawkins]

Virtual tours aren't allowed on websites to be compliant? I know so many that have their Google photographer tour embedded.

 

[keyserholiday]

@JoyHawkins apparently there isn't a way to alt image tag each viewpoint. They made the executive decision to remove all of them and hyperlink the text, see our 360 tour.

@Yan Gilbert its nationwide beauty and wellness brand. They have multiple brick and mortar locations.

 

[pbarnhart]

Websites aren't mentioned in the ADA - its left up to the courts to interpret what "compliant" means.

First, the Jan 2018 Federal compliance requirements (see Overview of the Final Rule - United States Access Board) are not the only rules covering this issue. There are also a mishmash of state requirements as well, and they are often fuzzy and poorly maintained.

For example, it could be argued that a text description of the tour be made available via link to another page. 99 times out 100 that would be considered a reasonable accommodation and perfectly within the law. But it is still cheaper to delete the tour instead -- especially when interaction and conversion measurement for the 360 tours aren't readily available and you don't know how much of your business to attribute to the feature.

By the way, if you do add a text transcription to your videos, you can still get sued because you don't have a Second Audio Program (SAP) audio description as well. Or you can't tab into the video iframe. Or any of a dozen other minor mistakes common for web design.

You can closely adhere to the WCAG 2.0 and still get sued. You can score perfectly using the WAVE Web Accessibility tool and still get sued. If you can settle for $5,000 do you really want to incur the expense of an ADA Title III lawsuit dismissal at $15,000? If your dismissal fails, you risk having to explain to a jury why you're compliant. There is not some technically-proficient evaluator looking at this. Its 12 jurors trying to read some pretty complex regulations. With a very sympathetic, handicapped individual as the defendant against your an expensive expert witness trying to explain alt tags, tab order, and screen readers.

Most of these lawsuits are structured as a money-making grab by attorneys - an Austin attorney got disbarred over these kinds of stunts (see Austin ADA attorney Omar Rosales suspended from federal court is just one story on this example).

In the short term, remember the story of the two campers and the bear. A bear jumps into camp one night, and the first camper starts putting on his running shoes. "What are you doing?" the second camper said. "You can't outrun a bear!"

"I don't have to outrun the bear. I just have to outrun you!"

Do what you can to meet WCAG 2.0 or 2.1 compliance. These lawyers simply scan websites for basic compliance, and look for things like alt tags and video transcriptions to see if the business has made a reasonable effort. Then they move on to slower prey. But understand, this is not about compliance, or helping the disabled. It's about easy money.

If you are a business owner, talk to your insurance agent right after you talk to your web designer and check your insurance coverage. If you develop websites, make sure you have liability coverage and your attorney has reviewed the warranty and liability sections of your contract. If you can afford it, consider paying for an audit by a reputable company (which can be used in your dismissal motions).

Long-term? Talk to other business organizations, your state and national legislators, and local accessibility advocates to try and get these laws rationalized.

"As web technologies change and browsers strive to keep up, it is near impossible to achieve 100% accessibility." - Accessibility

 

[djbaxter]

This may be an issue in Canada too. And websites are specifically mentioned.

For Ontario:

https://www.3playmedia.com/2016/06/03/aoda-compliance-a-primer-on-canadian-accessibility-standards/

 

[Amanda Putney]

Below is a great example from the DOJ regarding what an ADA lawsuit resolution looks like. The last paragraph is especially important in regards to websites.

Title III of the ADA prohibits discrimination on the basis of disability by public accommodations in the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of places of public accommodations. Title III of the ADA also requires public accommodations to take necessary steps to ensure individuals with disabilities are not excluded, denied services, segregated, or otherwise treated differently because of the absence of auxiliary aids and services, such as accessible electronic information. The Justice Department has long considered Title III and its implementing regulation to apply to the online services and communications of public accommodations.

Justice Department Enters into a Settlement Agreement with Peapod to Ensure that Peapod Grocery Delivery Website is Accessible to Individuals with Disabilities

www.justice.gov

 

[Tim Colling]

"The Justice Department has long considered Title III and its implementing regulation to apply to the online services and communications of public accommodations."

Everyone who is surprised to hear that the government feels this way should attend a meeting next Tuesday at the first phone booth on the left in Bonsall, California. There should be plenty of room.

 

[embermethod]

This is very interesting. A partner of mine very recently forwarded me a link from her lawyer whose practice is starting to dabble into website ADA compliance. Apparently some big companies are getting hit with lawsuits related to this. It was the first I'd heard of anything relating ADA compliance with websites.

Here's the link she shared in case it provides any useful insight to anyone:

CLIENT ALERT: NEW-WAVE OF ADA LAWSUITS AGAINST WEBSITE OWNERS | Doida Crow Legal

Business Owners: Is Your Website ADA Compliant? When most business owners think about the Americans with Disabilities Act they thinkView Full Post

www.doidalaw.com

Glad to hear that it sounds like the company being sued has a window within which to fix their non-compliance rather than just being straight wrecked by the lawsuit.

 

[Tim Colling]

It's hard not to feel like this is just a shakedown sometimes.

Glad to hear that it sounds like the company being sued has a window within which to fix their non-compliance rather than just being straight wrecked by the lawsuit.

From what I've read, these situations usually lead to a two-pronged settlement where the website owner agrees to make the site more compliant AND they also pay a big settlement to the plaintiffs and their attorneys.

Ugh.

The two most significant threats to website owners right now are ADA compliance litigation and privacy policy law litigation.

Double ugh.

 

[djbaxter]

Important Update on the ADA Compliance Issue

Websites Not Bound by ADA Accessibility Rules, 11th Circuit Finds – Courthouse News Service
April 7, 2021

ATLANTA (CN) — In a decision that a dissenting judge warned could have widespread consequences for visually impaired people, a split panel of the 11th Circuit ruled Wednesday that websites for businesses that are generally open to the public are not places of public accommodation under the Americans With Disabilities Act.

In a 2-1 decision, a panel of the Atlanta-based appeals court ruled that although “inaccessibility online can be a significant inconvenience,” supermarket chain Winn-Dixie cannot be found liable under Title III of the ADA for having a website that is inaccessible to disabled people who use screen-reading software.

Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodations, including hotels, restaurants, bars, movie theaters, grocery stores, parks, schools and museums.

“All of these listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed. Thus, we conclude that, pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places,” U.S. Circuit Judge Elizabeth Branch, a Donald Trump appointee, wrote on behalf of the majority.

The majority found that the absence of “auxiliary aids” on the website does not act as an “intangible barrier” to exclude customers from Winn-Dixie’s physical stores.

“Absent congressional action that broadens the definition of ‘places of public accommodation’ to include websites, we cannot extend ADA liability to the facts presented to us here, where there is no barrier to the access demanded by the statute,” the ruling states.

The decision vacates a 2017 Florida federal court ruling concluding that Winn-Dixie violated the ADA because its website did not offer a visually impaired customer the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” that it provides to other customers.

In a 34-page dissenting opinion, U.S. Circuit Judge Jill Pryor, a Barack Obama appointee, stressed the broadness of the ADA and wrote that the majority misunderstood the law’s scope.

Pryor wrote that the website’s incompatibility with screen-reading technology denied disabled customers “the full and equal enjoyment of services, privileges, and advantages offered by Winn-Dixie stores.”

Juan Carlos Gil, who is legally blind, sued Winn-Dixie in 2016 under Title III of the ADA. He claimed that he was unable to access the chain’s website because it was incompatible with screen-reader software, which he used to vocalize website content.

U.S. District Judge Robert Scola Jr. sided with Gil and decided that the store’s website is “heavily integrated with” and operates as a “gateway” to Winn-Dixie’s physical store locations.

Winn-Dixie does not sell goods on its website. The website’s primary functions are to allow customers to refill existing prescriptions for in-store pickup and to link digital manufacturer coupons to customer rewards cards.

According to Wednesday’s ruling, Gil sought to use the online prescription refill feature so that he could avoid having to verbally disclose his medical information to employees at the store, where others might overhear. He also wanted to use coupons without having to ask friends or store employees for assistance.

Branch opined that the website does not “impede access to the goods and services offered in the physical stores.”

But the dissent points out that customers who request refills in-store might wait up to 30 minutes before the refill is ready. A sighted customer who submitted a refill request online would be offered “a streamlined, fast process that offered greater privacy.”

“After comparing the experiences of Winn-Dixie’s disabled and nondisabled customers regarding express prescription refills, I cannot understand how the majority concludes that disabled customers, like Gil, were offered the equal treatment and ‘like experience’ that A.L. requires,” Pryor wrote, referring to the 11th Circuit’s 2018 decision in A.L. ex rel. D.L. v. Walt Disney Parks & Resorts US, Inc.

The panel’s majority also ruled that Winn-Dixie’s website did not represent an “intangible barrier” to Gil’s ability to access the goods and services of the supermarket’s physical stores. But Pryor wrote that the result of the panel’s decision “cannot be squared with the ADA.”

“Places of public accommodation, such as stores and restaurants, increasingly use websites and apps to offer their customers safer, more efficient, and more flexible access to goods and services in physical stores. As I read it, the majority opinion gives stores and restaurants license to provide websites and apps that are inaccessible to visually-impaired customers so long as those customers can access an inferior version of these public accommodations’ offerings,” she wrote.

A representative for Winn-Dixie did not immediately respond to a request for comment Wednesday afternoon.

Branch was joined in the majority by U.S. District Judge Danny Reeves, a George W. Bush appointee sitting by designation from the Eastern District of Kentucky.

No doubt this won't be the last word on the issues but it does seem that the courts may be looking for a narrower version of the ADA laws about websites

See also:

• What's the deal with ADA Website Compliance?
• Tools for ADA Website Compliance

 

[Tim Colling]

Important Update on the ADA Compliance Issue

Websites Not Bound by ADA Accessibility Rules, 11th Circuit Finds – Courthouse News Service
April 7, 2021


No doubt this won't be the last word on the issues but it does seem that the courts may be looking for a narrower version of the ADA laws about websites

See also:

• What's the deal with ADA Website Compliance?
• Tools for ADA Website Compliance

Thanks for sharing this, @djbaxter

It will be very interesting following this reaction to this case and the appeals that may follow.

 

[hajnasiewicz]

Thanks for sharing this, @djbaxter

It will be very interesting following this reaction to this case and the appeals that may follow.

Thank you for sharing this important information!