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It has long seemed that the best way to both create accessibility for websites and to tame the industrial ADA litigation monster is to have a technical regulatory standard. Most recently a group of U.S. Senators has written to the Attorney General urging a resumption of the regulatory process that was ended under President Trump.¹ Before the process was ended the proposed regulations were essentially the familiar Web Content Accessibility Guidelines 2.0; the same guidelines that have been adopted as regulations for government websites under Section 508 of the Rehabilitation Act. Another group of members of Congress tried to accomplish the same thing with legislation that would have added a new title to the ADA and require this kind of regulation.²
I thought for a long time that some kind of regulatory solution was needed, but my experience defending lawsuits concerning physical accessibility ADA suits has persuaded me that a regulatory approach that essentially makes some version of the Web Content Accessibility Guidelines legally binding – which is what the abandoned DOJ regulations did – will neither improve website accessibility nor tame the beast.³ Instead we need regulations that adopt a functional approach to accessibility – the kind of approach used by Judge William Orrick in the recent decision in Gomez v. Trinitas Cellars, LLC, 2022 WL 2194658 (N.D. Cal. June 17, 2022).
Judge Orrick was considering a Motion to Dismiss that he had converted to a motion for summary judgment, a procedure that allows consideration of evidence beyond the words of the Complaint. The defendant attacked the plaintiff’s standing to sue, which is a real issue for this plaintiff (4), but the most interesting part of the decision concerns the defendant’s claim that the website was in fact accessible. Judge Orrick’s approach to that question shows just how similar issues should be approached in every ADA lawsuit.
Mr. Gomez’s first claim was that some of the images on the website did not have a meaingful text equivalent and could not be “seen” by a visually impaired user with screen reading software (SRS). The first such image was the logo of the business, which the defendant admitted had a meaningless text label. Judge Orrick found that this did not violate the ADA because the plaintiff could not explain how the lack of a label would deny him the full and equal enjoyment of the business or deter him from visiting it. As Judge Orrick observes, “it may have been ideal for that banner to be readable, but that does not mean it shows a cognizable injury or violates the ADA.” He applied the same analysis to social media logos that were not SRS readable: “neither Gomez’s opposition nor his supplemental brief draws even an arguable connection between this lack of readability and a barrier that would matter to the ADA.” This is how the ADA should be applied to technical accessibility issues. The ADA’s guaranty is that no person will be denied: “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” (5) Symbols and logos that have no functional purpose cannot be fit within the kind of things whose enjoyment the ADA protects.
This was not a blanket finding that every technical problem was not a violation. The Court recognized that menu items had to be accessible for the website to be usable at all, but it found as a matter of fact that the menus were accessible and could be read by SRS. Gomez’s last claim, concerning the contrast between text and background, was rejected because contrast does not matter to SRS, which is reading code, not visible text. Gomez was not blind – he only suffers from very poor vision – but his testimony was that he used SRS to navigate websites, so low contrast did not matter to him even though it might matter to a plaintiff with poor vision who did not rely on SRS.
Two principles can be found in Judge Orrick’s opinion. First, Title III of the ADA is violated only if some element of the website interferes with its practical use by a person with a disability. Second, an individual does not have standing to sue unless they were personally hindered in their use of the website even though some defective element is connected to their kind of disability. Any new regulations from DOJ should follow these principles and look at accessibility in practical rather than technical terms.(6) Instead of a “gotcha” list of technical requirements that no complex website can possibly meet, regulations should emphasize the purpose of the website, what users expect from it, and whether those expectations are met for individuals with a disability. For most commercial websites the purpose is to sell or rent something, and the question should be whether a person with a disability can accomplish that purpose with reasonable facility. From a litigation standpoint the plaintiff’s burden should be to plead the existence of a problem with the function of the website, not merely that logo or image lacks meaningful alternative text.
And while DOJ is thinking about meaningful regulations directed toward improving accessibility rather than generating meaningless litigation the courts might consider adopting Judge Orrick’s approach to cases involving physical accessibility. I’ve already pointed out the absurdity of so called “stigmatic injury” in Title III ADA cases.(7) Purely objective standards for accessibility have the advantage of being objective, but they suffer the disadvantage of being unachievable in practice. Plaintiffs should be required to plead and prove not just a technical violation, but also that they were personally suffered some kind of excessive inconvenience (8) in their full and equal enjoyment of a facility in order to plead or prove a Title III violation. This is the direction courts seem to be moving; it just needs to be incorporated in any new regulations defining accessibility.
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¹ See, letter dated June 10, 2022 from Senators Tammy Duckworth and Richard J. Durbin to Attorney General Merrick Garland. https://www.judiciary.senate.gov/imo/media/doc/22.06.10%20-%20LETTER%20-%20Duckworth-Durbin%20letter%20to%20DOJ%20on%20web%20accessibility%20-%20FINAL.pdf
² See my blog The Online Accessibility Act of 2020 – does it do what it needs to do?
³ Seyfarth Shaw recently reported that ADA filings are down by 22% in the first half of 2022. 2022 ADA Title III Mid-Year Federal Lawsuit Filings Drop 22% Compared to 2021. The most likely explanation is that recent prosecutions of some of the most notorious ADA serial filers and the Laufer standing decisions from the 5th and 10th Circuits have discouraged new filings. See, A short sharp shock – the end of the beginning for serial ADA lawsuits? and Laufer v Looper – the death of tester standing, and not just in ADA cases. This does not mean that misuse of the ADA no longer exists. Some law firms that engage in serial filing have now lowered their monetary demands and are sending demand letters before filing suit in an effort to make a quick settlement more attractive to defendants who would otherwise be tempted to fight back. The most extreme versions of this kind of ADA exploitation have criminal consequences, see https://www.justice.gov/usao-sdny/pr/attorney-pleads-guilty-filing-fraudulent-lawsuits-under-americans-disabilities-act. It is worth noting that the firms now sending demand letters instead of filing suit will generally not name their supposed client. This avoids criminal conduct like that prosecuted by DOJ, which involved using names without permission, but leaves open the question of whether the firm has a client at all. In the 40+ years I have been a litigator I have had thousands of clients receive demand letters, but the only times I’ve seen a demand letter that did not name a plaintiff have been demand letters concerning ADA website accessibility.
(4) A number of cases filed by Mr. Gomez have been dismissed just based on a lack of standing. See, e.g.,
Gomez v. Wunderlich, 2022 WL 2119120, at *1 (N.D. Cal. June 13, 2022) and Gomez v. Tribecca, Inc., 2022 WL 1469504, at *4 (C.D. Cal. May 10, 2022).
(5) 42 U.S.C. §12182(a).
(6) This kind of functional analysis will be incorporated in the upcoming version of the WCAG, version 3.0, which will measure conformance based more on practical effect than strict technical compliance. See, https://www.w3.org/TR/wcag-3.0-explainer/
(7) See, Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan
(8) Excessive inconvenience is an appropriate standard because disability by definition imposes some limits on the full and equal enjoyment of a facility. Even with perfect technical compliance a facility will be less convenient for a person with a disability than for a person without any disability.
The Jurassic Park series of movies are all about unintended consequences. You can say the same thing about the Facebook advertising tools that were the subject of lawsuits against Meta. On June 21 the Department of Justice announced a settlement of claims against Meta related to Facebook’s advertising algorithms.¹ It is the second such settlement, the first having been obtained in a lawsuit filed by the National Fair Housing Alliance and other groups.² Both settlements are interesting reading for those who specialize in these subjects, but it is worth asking whether they will have any impact on other players in the real estate market. You don’t have to be a Meta, a Spectre, a T.H.R.U.S.H. or a Kaos(4) to for these settlements to have an effect on how you do business as a landlord, management company or real estate agent or broker. That’s because these settlements are aimed at new technologies, but rely on old fashioned legal principles that apply to all aspects of the housing market and to the unintended consequences of any kind of targeted marketing program.
“Short sharp shock” is too good a phrase not to re-use, as proved by the fact that after its first use by Mary I of England to describe her hope that burning a few protestants would bring others back into the fold and its popularization by Gilbert and Sullivan it turned up in a song by Pink Floyd and as the title of Michelle Shocked’s first album. My use probably won’t get added to the Wikipedia page on the phrase (7) but it suits a discussion of braille gift card litigation and the effect of TransUnion v. Ramirez in ADA litigation.
The Rolling Stones famously asked that they be rolled like a pair of tumbling dice, and looking at recent Title III ADA headlines reminded me of just what a crapshoot ADA litigation can be. The good news for businesses is that the district attorneys of San Francisco and Los Angeles have filed suit against the Potter Handy firm and its partners alleging that the firm filed false lawsuits under the ADA.¹ Hard on the heels of the action by the local authorities a federal judge in San Francisco, Vince Chhabria, entered a series of show cause orders requiring the Potter Handy firm and its clients to file sworn declarations providing factual support for their allegations concerning having visited and intending to visit ADA defendants in the future.² I don’t know how Potter Handy and its clients will respond to these orders, or what Judge Chhabria will do with those responses, but within days of these actions a federal judge in San Jose entered an all too typical order allowing a case to proceed despite being more or less identical to those being handled by Judge Chhabria. Sevens or snake eyes, in ADA Title III matters defendants and plaintiffs are at the mercy of the random assignment of judges done with each federal lawsuit filed.