I’ve blogged before about the problems created by a lack of ADA website regulations, including the difficulty courts have deciding just what “accessible website” means.* The Circuit Court most likely to shed light on this issue is the 11th Circuit, for the pending Gil v Winn-Dixie appeal presents the question directly. There is, however, a more fundamental problem. It may not be possible to create an objective standard for accessibility. I’ll explain why by looking at the most commonly referred standard, WCAG 2.x and showing that it is impossible to determine objectively whether any website actually conforms to WCAG 2.x at any Success Level. More
ADA – serial litigation
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA FHA General, FHA design/build litigation, First Fix Then Fight, Uncategorized Tags: ADA defense, ada litigation, FHA Defense, FHA design/build litigation
A third of the reported ADA and FHA decisions in the last three weeks involved a single plaintiff, Scott Johnson. Mr. Johnson’s name is often found in this blog because he has been a fertile source of decisions on a wide range of ADA issues. As discussed below, outrage is one common response to his lawsuits.
Outside the courts my ADA news feed delivers two kinds of articles for the most part. One kind complains about serial filers and their impact on local businesses. The other complains about the lack of accessibility in public accommodations and governmental entities. Neither seems to ask the big question that I have asked for years: Can’t we find some better way to increase accessibility than wasteful private litigation? The present system is a failure, as evidenced by the fact that decades after passage of the ADA private lawsuits continue to increase in number. Nonetheless, the two sides of the serial litigation issue seem stuck on a fruitless debate about the morality of serial filing instead of trying to address the possibility of a genuinely effective system of enforcement. And with that sermon behind us, here are your tax day cases. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Litigation Procedure, ADA Mootness, FHA, FHA Reasonable Accommodation, Uncategorized Tags: ADA Counters, ADA defense, ADA Mootness, FHA Defense
I’m a day late with the St. Patrick’s Day Edition of Quick Hits but that’s no reason not to raise a toast to the saint who, as my great-grandfather William Mullin said, drove all the snakes out of Ireland except the politicians.
Counter widths and the ADA
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Policies Tags: ADA defense, ADA Internet, ADA website, CSUN Assistive, Lainey Feingold, WCAG
I’m just departing from the 2019 Assistive Technology Conference with a few prejudices confirmed but with some new ideas as well.
I spoke with a number of companies that sell consulting services for web accessibility based on a wide range of business models. Since the website litigation storm broke in 2015 the field has developed, but there is still no good accessibility solution for a small retail store or restaurant. Simple websites are less likely to have accessibility issues, but their owners are heavily dependent on small, independent web designers and developers who often live in blissful ignorance of accessibility issues. Twenty-five years after passage of the ADA strip shopping centers that don’t meet ADA standards are still being built because smaller contractors and one person architecture firms don’t know about or understand the construction standards. The same thing will be true for web accessibility twenty-five years from now if we don’t find a way to educate the web design community about it. For those who don’t want to wait the following link has a list of resources from Lainey Feingold’s website. Resources.
It seems likely that accessibility litigation concerning mobile applications is going to increase. Easy to use tools for testing the accessibility of mobile apps are now becoming more available. That will make it easy for those members of the plaintiffs’ bar who are on the prowl for targets to find mobile apps to sue. In this case however businesses and developers have the lead time needed to make their apps accessible if they will only pay attention to the need.
Speaking of the plaintiffs’ bar, I was reminded by Ms. Feingold that buried in the avalanche of lawsuits whose only purpose seems to be lawyer enrichment are a few brought by organizations and individuals whose first concern is accessibility for those who are disabled. It is a reminder that the real problem with web accessibility cases is not that they exist, but that they are wasteful because they divert resources away from accessibility and to lawyers, whether on the plaintiff or defense side. The most needed ADA reform is one that delivers robust enforcement without waste.
A number of defense lawyers, including myself, spoke about one aspect or another website accessibility litigation. No one is defending the idea that websites should remain inaccessible, but cases are being defended nonetheless for various reasons, including unreasonable settlement demands by plaintiff’s lawyers and defendants who are simply fed up with being sued over and over again based on supposed WCAG non-comformance that does not affect the usability of the site. DOJ’s refusal to regulate is part of the problem, but it is becoming clear that reliance on WCAG 2.0 AA as an ADA standard imposes an unreasonable requirement of perfection on any website. Our existing model for measuring accessibility comes from the world of physical access. Strict technical requirements make sense when you’re building a permanent physical structure because if it is built to comply with the requirements it generally continues to remain compliant. Modern websites are complex and dynamic. Compliance with any rigid standard is bound to fail as the website changes over time. We need a regulatory definition of ADA compliance focused on usability rather than technical perfection.
The main takeaway for me was that a lot of people are working very hard to make the world more accessible for the disabled, but the emphasis in the news is on those who abuse the system for some kind of personal gain. The reporting is not the problem. It simply reflects the fact that the existing statute and regulations lend themselves to abuse. Unfortunately the solutions are all political, and political solutions don’t seem possible right now. The best advice remains the same as in 2014. If you have a website, You need a nerd, not a lawyer.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, FHA Tags: ADA defense, ADA hotels, ADA Mootness, ADA serial litigation, ADA websites, FHA Defense, Scott Johnson, Starbucks
It’s been a year and 43 blogs since last President’s Day and like Yosemite falls, the broad picture of ADA and FHA litigation in America remains about the same despite the passage of time. A huge majority of the cases filed are from serial litigants operating as part of a lawyer sponsored litigation machine whose goals have nothing to do with accessibility and everything to do with making money. Congressional action aimed at serial litigation was misguided and is now doomed. Individual judges are taking important stances against abusive litigation, but the overall landscape remains about the same. More