On March 18 the Department of Justice published its Guidance on Web Accessibility and the ADA. Anything that helps businesses understand their ADA obligations is helpful, but the fact that this Guidance was posted on the beta site of ADA.gov tells you that even DOJ has low expectations. Those low expectations are justified because the Guidance doesn’t define website accessibility and therefore does nothing to help businesses have certainty about their compliance with the law. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, FHA, Uncategorized Tags: ADA defense, ADA intent to return, ADA Mootness, ADA standing, ADA website nexus, FHA Defense, unruh act, website accessibility
The last six weeks have seen some important or at least interesting decisions under the Fair Housing Act and Title III of the ADA. If there is any common thread, it is that courts in general seem increasingly reluctant to give serial plaintiffs the benefit of the doubt on dubious pleadings while some judges continue to treat private enforcement as a legitimate means to advance the policy goals of these statutes. This is part 1 of a 2 part blog, so stay tuned . . . More
My new paper “Understanding Website Accessibility Litigation” is available now for download. This paper is for businesses who want to understand this highly publicized form of litigation without jargon and legalese. Here’s a summary of what the paper will explain; a link to view the entire paper appears below.
It isn’t clear which business websites are covered by Title III of the ADA. It may cover all websites that are available to the public or it may be limited to websites that have some connection to a physical place of business. Just what that connection must be is also uncertain.
It isn’t clear what it takes for a website to meet the requirements of Title III of the ADA. WCAG in its current version at success level AA is the best available technical standard, but it does not have the force of law. Conformance to its requirements may not be sufficient, and non-conformance may not mean the website violates the ADA.
Not all lawsuits and demands are the same with respect to the threat they pose. Lawsuits and demand letters come from law firms that range from very sophisticated to incredibly ignorant. The only general advice that applies to all such lawsuits and demands is that before adopting any legal or business strategy you must know about the law firm and its history of website litigation.
Different judges can have very different views of what the ADA requires and how different defenses apply. Just as you can’t decide on legal strategy without knowing about the law firm that filed suit, you can’t decide on a legal strategy without knowing what your specific judge has done in the past with similar ADA lawsuits.
Software testing is not adequate to find all the accessibility problems a website may have. Only user testing by trained users can locate all the accessibility problems in a website.
No widget, plug-in or overlay can make a website fully accessible. These products can, at best, improve a small subset of common problems but often do so at the expense of making other parts of the website inaccessible.
Accessibility and good design go hand in hand. Making a website easy to use for non-disabled users will almost always solve common accessibility problems. Good design should b the primary consideration in website development.
To open the paper in your browser click this link: “Understanding Website Accessibility Litigation.”
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Internet, ADA Internet Web, ADA Web Access Tags: ADA defense, Digital Accessibility Legal Summit 2021, overlay, plug-in., website accessibility, widget
The Digital Accessibility Legal Summit 2021 is over, but those interested in the panel discussion and following commentary from The Great Accessibility Overlays Battle can watch it YouTube below. Spoiler alert: widgets, plug-ins and overlays all have one thing in common – they cannot guarantee website accessibility and if you read the fine print, the companies that sell them don’t even claim they can.
I received a call earlier today from one of the lawyers who sent demand letters on behalf of Pursuit of Respect.¹ It was a follow up to an email from August 2021, which was in turn a follow up to my response to a demand letter sent in June 2021. You can see they are not operating on a very tight schedule. In any case it prompted me to see how things were going with Pursuit of Respect since I have heard nothing of them since September¹. A quick look at Pacer.gov indicated that Pursuit of Respect has still never filed an ADA lawsuit. Jerome Ramsaran, the attorney who incorporated PoR has not filed an ADA lawsuit since 2019. The website of Pursuit of Respect, which claims to advocate for accessible websites, is not WCAG 2.1 AA compliant.
I did find it interesting that the same individuals who created Pursuit of Respect incorporated another non-profit, Advocacy for Equality, Inc., in December of 2020. I have not heard that demand letters are being sent in its name, but it would not surprise me if it is being used for that purpose. Please let me know if you have received a demand from either Pursuit of Respect or Advocacy of Equality in the last few months so I can share information.
¹ See “ADA Odds and Ends”
See my blog “Same old wine” for more information on this group.