What do Core Power Yoga, the Honey Backed Ham Company and Camp Bow Wow Franchising all share in common? All three are recipients of complaints challenging existing website accessibility measures for the blind. While the motivations behind such lawsuits have invited controversy from those labeling them as “drive-by lawsuits,” pursued by self-interested lawyers chasing payouts, the underlying criticism is simple: businesses’ websites need to be more accessible to those who cannot see.
As the digital space ekes out more and more territory, those unable to navigate its contours face ever growing obstacles in daily activities from homework assignments to dating. When online shopping, photos without accompanying descriptive text make it impossible for some individuals to ascertain key details like shape and color of products.
What about the Americans With Disabilities Act (ADA)? Title III of the 28-year-old law prohibits companies from discriminating against the disabled “in the full and equal enjoyment of public accommodations.” But while most courts have interpreted such places of public accommodation to include websites connected to physical business, defense lawyers complain that compliance with the law is not as clear cut. Making matters worse, the Department of Justice failed to follow through with its intention of setting website-access guidelines in 2010.
Disability advocates filed an upwards of 2,250 website accessibility cases under Title III of the ADA in federal courts last year. One fifth of these suits were against companies that were already sued including Sherwin-Williams Co., and Forever 21 Inc. According to a survey conducted by Seyfarth Shaw LLP, this count has almost tripled since 2017, with New York and Florida as the busiest jurisdictions.
A slew of art galleries with names beginning with the letter “A” were recently sued last December by a blind Manhattan resident who claimed their websites were not equally accessible to all. “B” through “Z” galleries followed suit in short order, with more than 75 galleries across New York hit in total.
In neighboring Queens, a blind man sued Playboy.com alleging website incompatibility with his screen reading software and a lack of “text equivalent for every non-text element” precluding him from enjoying the site’s centerfolds. Playboy.com chose to fight the suit, maintain that it is “not obligated by law or otherwise to implement any policies or procedures demanded in the complaint.” Fighting back is a rare course for companies to take; most settle for $20,000 or less in attorneys’ fees plus costs, and an agreement to improve websites within two years.
Steps that Companies Can Take to Avoid Lawsuits
Despite no clear guidelines to safeguard against website accessibility lawsuits, companies may avoid these suits by taking any of the following measures:
First, companies can provide narrated descriptions of screen content or enhance website compatibility with separate tools. According to the Wall Street Journal, complaints describe roadblocks encountered when visually impaired people use “screen reader” tools to read aloud websites (imagine expecting a translation and only hearing “image” instead). Fixing these screen reader roadblocks can cost anywhere from several thousand to several hundred thousand dollars.
Second, they could ensure website compatibility with a device that converts text to Braille. In 2017, a team of undergraduate women from MIT came up with a portable device that converts text to Braille in real time during an MIT hackathon competition. The team hopes to sell the latest iteration of the prototype—the Tactile—at a maximum cost of $200.
Third, they may follow Web Content Accessibility Guidelines used by Federal government websites. For example, Guideline 1.1 recommends the provision of “text alternatives for any non-text content so that it can be changed into other forms people need, such as large print, braille, speech, symbols or simpler language.” A suggested advisory technique for audio-only files specifically is the provision of sign language videos.
And finally, they should avoid purely visual interfaces outright. A blind woman recently sued Beyoncé’s company, Parkwood Entertainment, in a class action under the ADA asserting that the website’s “exclusively visual interface” denied visually impaired users equal access to the site’s product and services offerings.
Although the American Disabilities Act has been around for decades, accessibility is an afterthought for many companies when designing sites and apps. Until this afterthought comes to the fore and companies start following steps such as the ones articulated in this post, or the Department of Justice promulgates clear guidelines, companies should continue to expect lawsuits. While art galleries and picture-heavy magazines may seem to be peculiar targets, Georgina Kleege, a lecturer at the University California Berkeley reminds us that blindness is not “monolithic” and “even people who are born totally blind live in a visual culture.”