Advocates, businesses say ADA causes trouble for disabled in digital world – By Clyde Hughes (UPI) / March 19 2019
“Federal legislators and regulators have remained mostly mute, leaving judges to resolve this thorny question,” one attorney and legal scholar said.
(UPI) — As more tasks of daily life migrate online, more advocates are getting serious about holding businesses responsible for making their websites accessible to Americans with disabilities — an issue industries say is not made clear by a 29-year-old federal law.
Recently, U.S. courts have seen an uptick in lawsuits filed by disabled Americans — and they’re winning. The suits are part of a sustained effort to force companies and organizations to come into compliance with U.S. disability law — even though it’s not clear exactly what that entails.
Chicago-based employment law firm Seyfarth Shaw said more than 2,200 suits were filed in federal court over web access last year — nearly three times the 817 recorded the year before.
But it’s a murky issue.
Advocates say the main problem is many business websites aren’t coded to work with assistive technologies that help disabled persons — like screen readers — or are simply inaccessible. Proper coding allows screen readers to convert words on computer devices into audible text. Assistive technology is an umbrella term for devices that help disabled perform tasks online that most people perform almost automatically, like reading and filling out electronic forms.
“From the beginning, this has been a very important issue for people with disabilities, especially blind people since so much commerce happens on the web now,” Mihn N. Vu, a partner at Seyfarth Shaw law firm, told UPI.
“Over time, there have been more and more favorable decisions for plaintiffs in this space.”
Federal law requires government-run websites to be accessible to the disabled, but there is no firm mandate for corporate sites. The 1990 Americans with Disabilities Act, the law that covers the issues, doesn’t specify how sites should make themselves accessible to persons with disabilities, like the visually-impaired and the deaf — largely because it was passed nearly 30 years ago, long before the emergence of today’s digital landscape.
“The general public is very unaware [of the website access issues], but it’s easy for a person to quickly feel empathy when you explain that the majority of blind users cannot do what you and I take for granted every day,” Jason Taylor, chief innovation strategist at Usablenet.com, told UPI.
Useablenet.com is a New York-based tech company that works with organizations to solve accessibility and usability issues for mobile and website platforms.
“The mainstream technology press has a big part to play to ensure that [the ADA] and accessibility get the priority they deserve and lawsuits,” Taylor added.
Taylor said once companies receive complaints, they typically act quickly to learn what it takes to come into compliance. The problem is, the ADA doesn’t make the steps clear — and that’s the gap the lawsuits aim to bridge.
For the visually impaired, technologies like screen readers, magnifiers, braille embossers, desktop video magnifiers and voice recorders offer ways for disabled persons to keep up online. But the devices don’t help at all if they don’t work with non-compliant sites.
“They are very responsive,” Taylor said. “No companies really want to create barriers to customers and our clients are typically surprised how hard their sites are to use, and quickly look to understand and remedy the situation.”
While there has been an explosion of lawsuits on the issue, there are still many non-compliant sites that risk being taken to court. Some site owners blame the ADA for ambiguity on the issue and Congress for failing to clarify it.
“As happens all too often, federal legislators and regulators have remained mostly mute, leaving judges to resolve this thorny question,” Glenn G. Lammi, policy chief counsel for the Washington Legal Foundation, wrote in a January column for Forbes.
“This default appeal to the judiciary … deprives website owners the consistent and transparent fair notice that the free-enterprise system needs to function.”
In one of the most high-profile cases yet, the 9th Circuit Court of Appeals ruled in favor of plaintiff Guillermo Robles, a blind man who filed a lawsuit because he couldn’t order from the Domino’s Pizza website — as it wasn’t compliant with his assistive device.
“All of that new technology, whether it’s mobile websites or special kiosks, blind and visually impaired people want to use that,” Robles’ attorney Joe Manning Jr. said.
The appellate court agreed and ruled Domino’s must make its site ADA-compliant.
Domino’s argued the Justice Department hasn’t given guidance on how a website becomes ADA-compliant. The 9th Circuit overruled a lower court opinion that dismissed Robles’ suit — saying the ADA doesn’t apply in this case because it would violate due process rights. The Justice Department, it ruled, hasn’t established necessary web standards or given technical assistance to enact such standards. The issue is still pending in federal court.
A Justice Department spokeswoman told UPI the department “declines to comment” on the issue.
Alliances like the Restaurant Law Center, American Resort Management Association, National Retail Federation and others joined Domino’s in an amicus brief hoping for protection against similar lawsuits.
“Many companies have multiple websites or brands,” Taylor said. “These companies may settle the first suit against one website but it’s not practical to immediately make all sites accessible, and allows for the same plaintiff to sue another one of their sites or brands.
“It’s also an individual settlement with one plaintiff. This allows for another plaintiff to sue the same site that just settled but has not had the time to make site accessible.”
Angelo Amador, executive director of the Restaurant Law Center, told UPI the challenge for businesses is the fact the ADA was crafted to address only physical accommodations for the disabled.
“If you look at the ADA requirements with physical barriers, they are very specific,” Amador said. “That doesn’t exist with websites. The Obama administration announced that it would come up with regulations. They didn’t do it and this administration hasn’t done it, either.”
Amador said the business community has repeatedly asked Congress and the Justice Department for clear guidelines — and he hopes someone takes the issue to the Supreme Court so there can finally be a definitive picture of what websites must do to be ADA-compliant.
“[The lawsuits] have been very burdensome and have become very expensive,” Amador added.
“Of course, we want people with disabilities to have access. The question continues to be, what is enough to provide that access and what are the requirements we have to reach?”
Most of the suits have been settled out of court so far — which is good for plaintiffs, but bad for defining the law. Without a clear standard across the board, various courts are left to apply what could be a wide range of solutions nationwide.
“That’s the worst-case scenario,” Amador said.
