Now as COVID-19 pushes more businesses, communication and emergency services online, accessibility law experts say the sooner websites comply with disability guidelines — such as providing audio transcripts, writing alternative photo texts and fixing broken links — the better.
Days after the 30th anniversary of the Americans With Disabilities Act of 1990, a civil rights law protecting people with disabilities from discrimination, San Jose law firm Hoge Fenton held a webinar on the issue with trial attorney Dan Ballesteros and Julie Griffiths, the Central Valley director of California Citizens Against Lawsuit Abuse. The Silicon Valley Organization-hosted event was moderated by former Assemblywoman and Hoge Fenton counsel Catharine Baker.
The main takeaway on what some have called the “wild west” of internet accessibility: hire a consultant and a lawyer to avoid lawsuits.
The hour-long discussion revolved around so-called serial litigists who often file “frivolous” claims targeting vulnerable small businesses because they are often more likely to settle with fewer resources than bigger companies.
“I would say websites are going to be the true drive-by’s, that is truly something you can do from your couch,” Griffiths said, referencing the ease of browsing online compared to physically visiting addresses. “Websites are so much easier to get to and are such low-hanging fruit.”
She also blamed other state laws for allowing thousands in damages to be awarded, saying plaintiffs who have filed numerous compliance complaints are taking advantage of the system. Some say that’s why downtown San Jose mainstay Cafe Crema closed its original location in The Alameda in January after being sued for not having a wheelchair accessible ramp.
Compliance through fear
But Autumn Elliott, senior counsel at Disability Rights of California, said lawsuits often are the only avenue for access without other methods of enforcement. Whether dealing with social security kiosks, online tax filing systems or even Gov. Gavin Newsom’s orders declaring a state of emergency, Elliot said the number of non-compliant websites is discouraging.
“We would love it if there were compliance with the ADA and other civil rights laws because people understand why we need those kind of laws and have a commitment to equity and inclusion,” Elliott told San José Spotlight. “Unfortunately in a lot of cases, it does take people being afraid of a lawsuit or some other action before they will comply. Power concedes nothing without demand.”
She argued that in 2020 new websites should be created with accessibility from the jump and retrofitting should be standard. Complaints of the cost to address lawsuits highlight the amount of access able-bodied people take for granted, she said.
“Regardless of how many lawsuits do get filed, they’re a drop in the bucket compared to how many inaccessible websites are out there,” Elliott said. “Every time someone has to ask somebody else without a disability to help them complete a task or just give up on doing that task, they lose the privacy and independence that we all value. Something like an accessible website really has reverberations throughout somebody’s entire life.”
Ballesteros said he sees about six lawsuits each quarter, which can run clients $4,000 to $12,000 — on top of lawyer’s fees.
“(Plaintiffs’ lawyers are) going to get to go out there with their expert and crawl through every aspect of your business and find more things to add on to the complaint,” Ballesteros said. “The really frustrating problem with the standard is that’s very different than saying the service counter has to be no higher than 38 inches.”
Lack of guidance
That’s one reason why best practices for website accessibility remain murky.
International standards revert to the Web Content Accessibility Guidelines, which outline accommodations for blindness, low vision, deafness and other disabilities. Success is measured through four principles of a website: perceivable, operable, understandable and robust.
The Department of Justice has not provided helpful guidance beyond the WCAB, despite promising to do so in 2010. A recent bulletin on ADA requirements from San Jose didn’t mention websites once.
The lack of specific requirements means many businesses are at risk of failing basic tests of accessibility, usually involving unreadable menus, colors, pop-ups and forms.
Adam Unger, business developer for Biz.Builders, a website inspection company, said people can get a basic grasp of their website’s compliance themselves; personal devices can often test accessibility with functions like Apple’s iPhone iOS voice over.
A website designer by trade, Unger said the issue is like the wild west, especially given the reality that no website is perfect. He knows because a website he created was once sued.
“This is the issue that you never knew you had,” Unger told San José Spotlight. “These guidelines have caught businesses and organizations off guard, and if you’re not proactive about this issue, it’s a $10,000 mistake for you and your business.”
Unger said 80% of his clients are actively facing lawsuits they didn’t see coming, blaming the lack of clear guidance, recommendations and education on the issue.
He suggests businesses pay for inspections or reach out to nonprofits such as the Miami Lighthouse for the Blind, which serves visually impaired people through educational, social and extracurricular programs.
But of the 400 Certified Access Specialists in California — often contractors or architects that deal with brick-and-mortar compliance – Unger said only 15 were interested in considering website inspections. That leaves little room for proactive efforts since free “one-click fix” tools aren’t always reliable or informative.
Over time, this lack of oversight has led to a mountain of problems, according to the 2020 Web Accessibility Annual Report. An analysis of more than 10 million websites found 98% of U.S.-based webpages are not legally accessible to the disabled.
Whether those with disabilities need to apply for jobs, read up-to-date news, access online religious services or order pizza, Unger said ADA compliance cannot solely rely on serial litigants to demand accessibility.
“You can’t leave the disabled in the dark,” Unger said. “When the pandemic hit, people were more than ever needing to use services, tools and access information online. If a blind person can’t access a web page appropriately, it’s a problem.”