In January 2019, Beyoncé Knowles’ company, Parkwood Entertainment, became the defendant in a class-action lawsuit alleging that it violated the Americans with Disabilities Act (ADA). The suit, filed by a blind woman from New York, claimed that the company’s website, Beyonce.com, did not provide accommodation for people with significant vision impairments, leaving an estimated 2 million blind people and others with vision impairments unable to access the primary portal for news about all things Bey.
Parkwood is far from alone. The ADA has been law for decades—it turns 30 in 2020—but it’s spurring a new wave of digital-era lawsuits. The civil rights law applies to businesses with 15 or more employees, including state and local governments, and also applies to places of public accommodation. According to calculations by the Chicago-based law firm Seyfarth Shaw, the first half of 2019 saw a 12% increase in ADA Title III lawsuits filed in federal court over the same time period in 2018 (5,592 vs. 4,965). The reason: Digital assets, primarily websites that are meant to serve the public, don’t always offer accessibility features for people with disabilities.
“Quite frankly, it’s become a cottage industry among plaintiffs’ attorneys,” says Thomas Barton, an employment attorney at law firm Drinker Biddle & Reath LLP’s Philadelphia office. “They will send out demand letters based on a publicly available website where they can run a pretty rudimentary test. It’s almost never 100% compliant, even if the business makes attempts to make it compliant,” And the risk extends beyond websites to possibly include all digital assets—everything from email correspondence and social media to internal portals and even video games.
Compliance confusion
Businesses may not even realize their website bumps up against the ADA. “Until you’re exposed to this, you don’t know what the challenges are,” says Simon Dermer, CEO and co-Founder of eSSENTIAL Accessibility. Dermer’s Toronto-based company helps businesses make their digital assets accessible to people with disabilities ranging from vision to hearing impairments, and provides adaptive technologies that can help people with physical disabilities navigate websites through webcams and other accommodations.
“Compliance” may have different meanings, depending on whom you ask. Ideally, websites would meet Web Content Accessibility Guidelines (WCAG), which is a set of technical specifications that improve the accessibility of web content, websites, and web applications on a variety of devices. The guidelines were developed by the World Wide Web Consortium (W3C), a global community of accessibility experts. WCAG 2.1, the latest version of the guidelines, suggests enhancements that address the needs of people with a variety of disabilities, including vision, hearing, mobility, learning and cognition, and others.
But adhering to the in-depth accessibility guidelines WCAG recommends can be daunting, especially for small to midsized businesses (SMBs), says Philip Voluck, co-managing partner of the Pennsylvania offices of law firm Kaufman Dolowich & Voluck. “While the WCAG guidelines are very specific, you don’t know which should apply to a small company and which should apply to a Fortune 500 company,” he adds. “So, it becomes a reasonable accommodation analysis. What’s reasonable for this company to bring its website into compliance?”
Recent presidential administrations don’t agree on the issue. Under the Obama administration in 2010, the Department of Justice indicated that it would use its rule-making ability to amend the ADA to include websites and other digital assets. However, in 2017, the Trump administration announced it was suspending previous guidance on the matter, as it reviewed whether such accommodation was necessary.
In June 2019, Domino’s—which is being sued by Guillarmo Robles, a blind man who says the website and the company’s mobile app are not accessible to people with vision impairments—petitioned the U.S. Supreme Court to overturn a lower court decision that ruled the website was essentially a place of public accommodation under Title III of the ADA and required to be accessible to people with disabilities. Overhauling the digital assets of its website would be costly and Domino’s petition argues that the government has not issued definitive guidance to determine what would need to be done.
Protecting your business
So, what is a well-intentioned business to do? There are some basics that are widely accepted. Websites need text and audio options, such as screen readers. Images should be coupled with text descriptions of their contents that can be read by the user or a screen reader. Contrast should be sharp so content can be read easily and flashing features, which can trigger seizures, should be avoided. Users should be able to navigate the website with peripheral tools such as a keyboard or webcam.
Like so many thorny issues of today, solutions may come courtesy of artificial intelligence and A.I.-powered tools. Ava, which builds accessibility tools including live subtitles for conversations, claims their solutions help make websites ADA compliant. Other companies, including Accessibe and Equalweb say they also help bring businesses in compliance with WCAG 2.1 AA level standards and the European Union Standard EN 301549, which outlines access requirements for people with disabilities in the EU. Microsoft also has an accessibility grant program.
But true accessibility goes much deeper than basic design or supplementary apps, says consultant Edward Wald. “You cannot simply address accessibility on top of existing application code and expect the issues to be fixed,” he says. It starts with the wireframe and extends to how the site or app is coded. Accessibility incorporates everything from how the copy is written and the site designed to how it is tested for various users’ experiences, he says.
For now, businesses are largely on their own in figuring out how best to proceed and where to invest. Experts like Dermer, Voluck, and Barton agree that it’s usually a good idea to err on the side of inclusiveness to the extent possible. By making your digital properties more accessible, you may protect your website from litigation and make it easier for the roughly one in four U.S. adults who live with a disability to do business with you.
“Basically, every other visitor to your website either has a disability or they’re close to someone, have an emotional connection to someone that they know, with a disability. When you convey you’re a disability-friendly brand, you’re making an impact on a lot of people,” Dermer says.
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