On April 23 at 11 a.m. eastern time I will be presenting a webinar on website accessibility litigation in conjunction with Jason Taylor of Usablenet, a firm that provides accessibility solutions for websites. It is free to register, just click on the following link for more information and instructions:
Website Accessibility 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
Miami Valley Fair Hous. Ctr., Inc. v. Preferred Living Real Est. Investments, LLC,2018 WL 4690790, at (S.D. Ohio Sept. 28, 2018) is not a brand new case, but it contains so much of interest it is worth a close second look by both defendants and plaintiffs in FHA design/build cases.The Court’s principal holding is the obvious but often overlooked rule the various safe harbors for the design and construction of multi-family dwellings are a shield, not a sword. In Miami Valley the plaintiffs produced a typical expert report in this kind of case. It listed several hundred supposed accessibility barriers based on deviations from the original FHA Guidelines promulgated by HUD in 1991 along with the assertion that because the Guidelines are the least restrictive of the HUD recognized safe harbors the apartments did not meet any safe harbor standard. Based on this evidence the plaintiffs sought summary judgment. More
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.
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.
