Michael Powell and Sabrina Simmons discuss how simple web coding changes can enhance computer use for visually impaired.
Mandi Wright, Detroit Free Press
In thousands of cases that are testing the limits of the law and cyberspace, businesses are increasingly facing lawsuits that contend their websites aren’t accessible to people who are blind and are in violation of federal disability mandates.
“Blind people want access like everybody else does,” said Michael Powell of Warren, Michigan, who has been visually impaired since birth. “We have screen-reading software, and it doesn’t cost a lot of money to make a website accessible.”
One problem: Virtual, on-screen “click here” buttons.
If you are blind, you can’t see photos or know where to click to indicate a preference or link to another page and often the site isn’t coded so the electronic reader can help you navigate.
“A lot of developers just don’t know how to do it, so they come up with reasons not to,” Powell, 65, said. “I have tools to use the Internet, but the Internet is becoming more closed to me.”
The controversy about website accessibility for people with disabilities dates back at least a decade, but it has been mounting as plaintiffs from coast to coast file an increasing number of lawsuits and companies become digital only.
The thinking is that if a business is required to build a ramp so someone in a wheelchair can enter the building, the same kind of virtual accommodation should be made for someone trying to use a website. For some plaintiffs, the desire is only to fix the problem, but others are seeking monetary damages, a payout, and many are ending in confidential settlements.
Among the active lawsuits is a case against Domino’s Pizza, which initially was dismissed but got new life earlier this year after an appeals court ruling reversed the lower court’s decision.
Another case: A blind man in New York filed a lawsuit against Playboy.com in November, arguing he couldn’t fully enjoy the features or buy its rabbit-logo gear because the site didn’t work with his disability software. That suit also is pending.
The lawsuits argue that websites for restaurants, grocery stores, retailers, universities and art galleries are in violation of the Americans with Disabilities Act passed in 1990, well before websites were so common.
Moreover, experts say, litigation is increasing, in part, because the Justice Department has declined to offer guidelines and standards for what companies need to do to be considered accessible.
“People are saying, ‘You can’t stop progress.’ ” Powell said. “We’re not saying we want to stop progress. There was a time when people thought the iPhone would never be accessible for blind people, but, now, with Voiceover, iPhones are accessible right out of the box. They can do the same thing with the Internet.”
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Remedy or shakedown?
Still, some companies and defense attorneys counter that in the absence of accessibility guidelines, they will be forever accused of not doing enough, and they suggest that some websites are being targeted for financial settlements, tens and hundreds of thousands of dollars.
“A lot of issues need to get sorted out,” said Michael Pitt, a Michigan lawyer,. “People with mobility, sight and hearing disabilities are being left out of the full enjoyment of the digital age.”
Pitt, who also is president of Public Justice, a Washington D.C.-based organization, acknowledged some lawsuits may be efforts by unscrupulous attorneys to shake down businesses and generate fees, but some suits also are attempts to halt injustice.
Last year, plaintiffs filed 2,258 lawsuits nationally claiming websites were inaccessible, up from 814 in 2017, according to Seyfarth Shaw, an international law firm that has been tracking these cases.
In fact, there were so many cases and rulings that could lead to more litigation, the firm concluded that 2018 had “been a bad year for most businesses that have chosen to fight website accessibility cases.”
About 7.6 million Americans are visually impaired, less than 3 percent of the population.
And blind Internet users say it’s not just business websites that are a problem. Government websites aren’t always accessible, either, leaving people with disabilities without a way to do things online.
“If you build in accessibility when you are doing your website, it doesn’t take much to make an accessible website for people who are blind,” Powell said. “What I’m saying is the technology is there, but not everybody cares that we can’t use it.”
No guidelines, no excuse
The case against Domino’s Pizza has gone back and forth since it was filed in 2016.
Guillermo Robles, who is blind, claimed in U.S. District Court in California that the pizza maker violated the federal disability requirements because he couldn’t order a pizza on his iPhone: The website didn’t work with his screen-reader software.
“In today’s tech-savvy world, blind and visually-impaired people have the ability to access websites and mobile applications using keyboards in conjunction with screen access software that vocalizes the visual information found on a computer screen or displays the content on a refreshable Braille display,” the lawsuit argued.
But, it added, “unless websites and mobile apps are designed to be read by screen-reading software, blind and visually impaired persons are unable to fully access websites or mobile apps, and the information, products, and services contained thereon.”
Initially, the case was dismissed, because, the court said, the Justice Department had not yet offered guidelines for online accessibility.
But in January, a three-judge appeals panel give the lawsuit new life.
The disability law, according to a court summary of the panel’s decision, “mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind.”
So even though customers accessed the website and app “away from Domino’s physical restaurants” the act still applies “to the services of a public accommodation, not services in a place of public accommodation.”
Domino’s had received fair notice that its website and app must comply with federal law, the court said, and imposing liability on Domino’s did not violate the company’s Constitutional right to due process.
The appeals court concluded that the absence of federal guidelines were no excuse: “The lack of specific regulations, not yet promulgated by the Department of Justice, did not eliminate Domino’s statutory duty.”
‘We’re just being bullied’
Joseph Manning Jr., the Newport Beach, California, plaintiff’s attorney in the Domino’s case and others like it, has said in other news interviews that cases like this will become more relevant as technology advances.
The firm has filed similar lawsuits against other companies, including Macy’s, Costco, CVS and Avanti Hotel in Palm Springs, California.
As a result in the case against Avanti, the 10-room boutique hotel’s general manager and part-owner, Jim Rutledge, said he changed the website. It still promotes its “sparkling pool,” “inspiring view of the beautiful San Jacinto mountains,” and the “luxurious comfort of spa-inspired linen.”
The flowery language is now preceded by a statement: “The requirements of the Americans with Disabilities Act leaves us no option” but to deactivate some of our pages, and it asks customers to “please call direct.”
Rutledge estimated it would cost about $5,000 to address the website and other complaints, another $8,000 to $10,000 to settle the lawsuit, and then there’s still the possibility of being sued again.
He called the lawsuit – which was filed in Superior Court of California in San Bernardino County last year – “legal extortion,” adding that “this is just a way for them to make money.”
In California, a compliance lawsuit comes with a minimum of $4,000 in damages.
“I empathize with people who have disabilities, but I don’t think it gives them the right to have a free hand in suing a small business,” Rutledge added. “We’re just being bullied. If you stand up to them, they will back off.”
‘A wave of lawsuits’
In some cases, the same plaintiff is filing multiple lawsuits.
More than 75 New York art galleries have been hit with lawsuits claiming that gallery websites are inaccessible, according to Artnet News, a publication that covers the art world.
One plaintiff, the Artnet News said, filed dozens of lawsuits.
The institutions include Cornell University, Vanderbilt University, the California Institute of the Arts, Oberlin College, Loyola University New Orleans and the Savannah College of Art and Design.
“There have been a lot that have been settled,” the New York plaintiff’s attorney Jeffrey Gottlieb said. He declined to say how many are pending, and what the settlements included other than to say they are “confidential, so I can’t comment on them.”
For groups, the barrage of lawsuits from a single plaintiff is a red flag.
Chris Danielsen, the director of public relations at the National Federation of the Blind based in Baltimore, said the digital accessibility is not new, and, in some cases, lawsuits are the only way to force a company to comply.
But, he said, if done irresponsibly, lawsuits could be counterproductive.
“There does appear to be a wave of lawsuits happening right now,” said Danielsen, who is blind. “We’re all using the Internet more and more in our daily lives. That goes for blind people as well as sighted people and there are an increasing number of things that you can only do online.”
The fear, he said, is that it leaves people with disabilities behind.
“We can’t, as blind people, get frozen out of the online economy,” Danielsen added. “That’s the risk we are facing. We are proactive and aggressive about online accessibility. We just want to make sure that it’s done right.”
Contact Frank Witsil: 313-222-5022 or firstname.lastname@example.org.
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