With technology so heavily embedded in everyday life, consumers may now spend more time on mobile apps and websites than in brick-and-mortar businesses. As such, employees, students and consumers with disabilities have the option of filing discrimination lawsuits against businesses if their websites fail to accommodate their disability.
Businesses with an online presence are required by law to be compatible with assistive technology and use resources to make their sites accessible to people with auditory, cognitive, neurological, physical, speech, and visual disabilities.
To be ADA-compliant, these websites must be free of barriers that make it difficult or impossible for people with disabilities to use them. Inaccessible websites can completely shut disabled persons out from critical services, leading to legal action and a demand for equal participation and opportunity.
A lack of Web accessibility compliance can create problems for millions of potential consumers. Many companies underestimate the number and impact of consumers who rely in part or completely on certain accessibility features to access websites. According to the Centers for Disease Control, approximately 61 million Americans live with a disability, each with the right to access websites as they so choose.
Joe Lyon is proud to represent disenfranchised individuals and disabled plaintiffs in ADA discrimination lawsuits. The Lyon Firm is a highly-rated consumer protection law firm with nationwide success.
What is the ADA?
In 1990, President George H.W. Bush signed into law the American Disabilities Act (ADA). At the time, the internet was a novelty which few companies saw as a part of their business structure. Now, however, millions of websites make up the fabric of the global marketplace, and there is little excuse for companies to fail to follow ADA compliance standards.
As of 2020, all websites that operate in the United States are legally required under Title III of the Americans with Disabilities Act to provide accessibility to all people. The Americans with Disabilities Act states: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”
This law is understood to apply to not merely brick-and-mortar establishments but their corresponding online extensions. Recent court decisions have held that the law now applies to the websites and mobile applications of the same businesses.
ADA Settlements & Violations
What does ADA non-compliance cost a company? First off, there are fines in place, which can be up to $55,000 for the first violation and $110,000 for each subsequent violation. Companies may also be sued and be held liable for ADA Title III violations, and may have to pay a large settlement, court fees, attorney fees and the eventual organizational cost of making their website accessible.
Organizations and owners of digital content such as websites, software, and mobile apps all risk potential litigation. Those companies who receive federal funding or grants may also see those funds revoked for ADA non-compliance.
The Department of Justice (DOJ), which is responsible for establishing ADA regulations, however, has not issued sufficient guidance or technical standards for online platforms like websites and other digital media.
Web Content Accessibility Standards & Guidelines
All consumers have the right to equal website access, and no end user should experience discrimination because of a disability. The majority of website owners understand this and agree with the sentiment in theory, but it is ultimately up to them to implement some design changes to fall in line with standards, or they may risk legal action.
Website accessibility can be somewhat complex, though every company should be working off a similar checklist of critical website elements, which may include the following:
- Site Navigation: Web page and site navigation should have a logical, tab-key friendly reading order, allowing for those with disabilities to navigate using only a keyboard. A properly structured site will enable keyboard-only users to navigate a site in an intuitive way, regardless if they can see the screen or not.
- Certain Landmarks or labels should be included in a site’s code to provide indicators for moving around a website. With this, screen reader users are able to access the menu quickly and move around the site.
- Appropriate Content Structure: A good web page will have a well-outlined structure to tell the user about content relationships. A properly structured website uses cues and logically names levels and sub-levels of content to show relationships between different areas. Unique titles, ordered headings, and lists are good ways to logically structure a site.
- Linking Guidelines: Hyperlinks are a critical element for some disabled site users who rely on assistive devices to scan for identifiable hyperlinks. Clear and readable hyperlinks are encouraged, as some screen readers navigate the page links for users. Links should be clear and visible, contrasting with surrounding text with some attribute other than color.
- Text & Font: Visual impairments are common for web users, and may include color blindness, myopia, or complete loss of vision. Small text or text too faint can pose problems for the visually disabled. Internationally recognized Web Content Accessibility Guidelines specify color contrast ratios on both pages and graphics.
- Images & Alt Text: Graphics and images can be extremely useful for disabled web users. Sites often use a company logo or name as their Home page, making navigation easier for some. Alternative text (alt text), or descriptions of images, provides the same access to information as the image itself. This can be critical for some images like charts and graphs. A lack of alternative text was cited in a class action lawsuit against Target in 2008.
- Access to Forms & Documents: Inaccessible online forms have been an issue for some companies facing legal action. In 2015, plaintiffs alleged Reebok created disability barriers with inaccessible forms, a lack of adequate site labeling, the denial of keyboard access, and the requirement of mouse-only transactions. All form fields should be clearly labeled and should provide an adequate amount of time for a disabled user to fill in the forms.
- Multimedia Variety: Alternatives should be provided to provide access to those who may not be able to either see or hear a video, for instance. For users with some degree of hearing loss, captioning and transcripts can be critical. An audio description of what is happening on screen may also be needed. For audio files, a written text version should be provided.
- Site Adaptability: A proper website design will enable a company to adapt to user needs, and change settings, content, and any other new digital inclusion standard set forth in the future. Future considerations may be needed for different environments and for different types of devices like computers, tablets, and smartphones. Continual maintenance will be required to keep any site current and ADA-compliant.
- Webinar Accessibility: Disabled users frequently submit complaints regarding webinar access and their limited formats. To accommodate all users, those hosting webinars are urged to consider access to screen readers, providing live closed-captioning, offering a transcript following the session, providing access to keyboard-only users, and offering disabled-friendly slides. Captions are obviously important for the deaf or hard of hearing, but they are also helpful to those with cognitive disabilities.
ADA Non-Compliance Lawsuits
According to a legal analysis in 2019, class action web accessibility lawsuits hit record numbers. In years past, almost every case was filed in California or New York, but in 2020 litigation has been growing around the nation. Some states have their own laws banning discrimination, like state Civil Rights Acts and Human Rights Laws.
Over the years, plaintiffs have filed web accessibility lawsuits and cited Section 508 of the Rehabilitation Act. Section 508 ensures that ICT (information and communication technology) is accessible. Some notable ADA lawsuits include:
- A former student of Miami University in Oxford, Ohio sued the university for discrimination, claiming the school’s website did not work with her screen reader. The university denied liability but agreed to pay the student $108,000 for expenses toward an undergraduate degree at another university. Miami University also agreed to a settlement of $102,000 for pain and suffering and $50,000 of student loans.
- Target Corporation set a precedent in 2008 when they settled $6 million class action ADA non-compliance lawsuit. The plaintiff, the National Federation of the Blind, alleged its website was not accessible to the blind.
- In 2014, H&R Block agreed to pay $45,000 to two individual plaintiffs and a $55,000 civil penalty after several disabled plaintiffs filed a complaint for not being able to use H&R Block’s website.
- The National Federation of the Blind sued Seattle Public Schools in 2012, claiming its websites were not compatible with the screen reader which reads aloud website content and documents, or displayed in braille. The NFB President said after the settlement that it was imperative to have “equal education for blind students and to have access to information, use of school services, and full participation in school activities by blind faculty, personnel, and parents.”
- A blind social worker sued her employer, Beacon Health Options, because inaccessible software and online resources prevented her from performing critical parts of her job without assistance. The plaintiff said she could not fully participate in mandatory job trainings, access patients’ clinical records, or participate in virtual conference calls.
- A class action lawsuit against Taco Bell alleged that the fast food chain violated the Americans with Disabilities Act (ADA) when its restaurants closed their lobbies and only allowed late-night drive-thru orders. In the complaint, plaintiffs said Taco Bell’s drive-thrus “lack any meaningful accommodation” for visually impaired customers, who obviously cannot drive.
- In 2016, Winn-Dixie was hit with an ADA website compliance lawsuit by a blind plaintiffs who claimed the Winn-Dixie website was inaccessible for the blind to fill prescriptions and to locate coupons. The lawsuit against Winn-Dixie claimed that those with visual impairments couldn’t access the website using their screen reading software. Websites are now held to the same standards as physical locations as it relates to ADA, with websites considered a public space. Winn-Dixie was ordered to update its website with WCAG 2.0 AA standards.
- In 2016, Netflix agreed to add audio descriptions to the soundtrack of video that describes visual details that cannot be understood by blind viewers. The department of Justice made a statement in favor of having ADA Tile III applied to technology, noting that although web-based services like Netflix did not exist when the ADA was passed in 1990, “…the legislative history of the ADA makes clear that Congress intended the ADA to be adapt to changes in technology. The Committee intends that the types of accommodation and services provided to individuals with disabilities, under all the titles of this bill, should keep pace with the rapidly changing technology of the times.”
- A visually impaired plaintiff sued the Fox News Network because it didn’t meet WCAG 2.0 standards. The website allegedly blocked the man from being able to receive goods and services available at Fox News’ physical locations, which included live broadcasts and tapings that audience members could attend. The case was settled on the condition that Fox News made changes and updates to their website to meet ADA guidelines.
- Burger King was sued in 2018 in a class action ADA non-compliance lawsuit that claimed the visually impaired were discriminated against. Plaintiffs said they did not have the same online access as every other consumer, thus violating ADA disability standards. Like many other web accessibility cases, the plaintiffs used screen readers that did not function on the company’s website. Because there were no alt-tags or other critical features coded into the site, the plaintiff reached barriers in accessing basic site information.
- Nike was sued by a visually impaired plaintiffs who claimed Nike.com and Converse.com failed to function with commonly-used screen reading software. There were no alt-tags for images, empty links without text, and other issues that made the site inaccessible for blind consumers. The Nike case was dismissed after Nike and the plaintiff reached a settlement.
- CVS Pharmacy, one of the largest convenience/pharmacy stores in the US, was sued in 2017 by a plaintiff who claimed she was shut out of certain portions of their website. The complaint alleged that blind individuals were not able to access important features of the CVS website. The lawsuits argued that if a blind person is unable to order online prescriptions, it is in direct violation with the ADA.
- Harvard University and the Massachusetts Institute of Technology (MIT) were both sued in 2016 because their websites failed to make online courses, guest lectures, and other video content accessible to deaf users. The National Association of the Deaf (NAD) filed the case against Harvard and MIT, claiming that the schools discriminated against deaf people as they failed to provide captions for their online content.
Challenges for Web Accessibility Programs
Upper management of every company should be asking themselves, what does ignoring web accessibility cost? The fact is that the risk of facing ADA discrimination lawsuits is only one portion of the cost. The larger cost would be missing out on a huge portion of potential commerce.
But even companies that wish to comply with ADA guidelines for web accessibility often struggle with implementing a proper online platform. Some of the challenges noted by business owners include:
- Forward Thinking—incorporating accessibility in an established online platform is difficult. When new changes are introduced into an existing website, many companies wished they have made included the ADA digital accessibility standards earlier in the web development lifecycle.
- Digital Inclusion Training—this is another challenge for companies, as most companies are too small to hire an ADA specialist. Existing resources must be used in-house, and this can also require a lot of time and energy.
- Testing Resources—the vast majority of organizations agree that testing by people with disabilities is important, but the majority don’t do it. A thriving web accessibility program should utilize testers who have disabilities.
Digital Inclusion & Consumer Rights Lawsuits
When a business chooses to embrace ADA standards, Web accessibility and digital inclusion, they are not only doing the ethical thing, they are building a future-minded brand and capturing the entire consumer market.
Furthermore, web accessibility may improve search engine performance. With more traffic, a site will rank higher in search results, and more potential customers are likely to visit an accessible site.
In coming years, a greater percentage of consumers will require access to assistive technology. This includes those with physical and neurological disabilities. Companies might also be overlooking an aging population. Up to a quarter of American mobile shoppers are over the age of 55, and many of the aged are affected by a disability.
If you or a loved one has experienced disability discrimination due to a lack of Web accessibility and ADA non-compliance, do not hesitate to contact a legal professional for a free and confidential consultation.
The Lyon Firm has settled numerous of consumer protection lawsuits in Ohio and throughout the nation. Call to speak to Joe Lyon about your case and potential compensation.