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Is Your Website Accessible to the Visually Impaired?

Tuesday, April 4, 2017   (0 Comments)
Posted by: Lauren Schoener-Gaynor
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The following story was written by Jeremy Richardson, Partner at the law firm Phillips Nizer. Phillips Nizer is an Associate Member of JPMA.


Creative Plaintiffs’ lawyers find ways to exploit well-intended laws. Consider California’s Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of 1986), a labeling law intended to warn Californians of products containing toxic substances. Cal Prop 65’s provision allowing private citizens to sue for violations unintendingly has led to a cottage industry of law firms specializing in these actions.


Add the Americans with Disabilities Act to the list of well-intended laws used by private citizens against juvenile products manufacturers. If you recently received a letter from the Carlson Lynch law firm, then you already know more than you want to about website ADA claims.


Carlson Lynch represents visually impaired individuals and Access Now, Inc., an organization purportedly devoted to eliminating discrimination against disabled individuals.Carlson Lynch will claim that a website discriminates against visually impaired persons (an ADA violation) because text to speech readers do not work with the website, making it impossible for visually impaired persons to themselves use the website.

 

Carlson Lynch “tests” websites for compliance with the World Wide Web Consortium’s Web Content Accessibility Guidelines known as WCAG 2.0. Their letters include test reports showing a website’s WCAG 2.0 compliance failures, and cite a long list of court decisions which Carlson Lynch says will support a lawsuit against the website owner. The letter may even come with a Confidential Settlement Agreement that leaves a blank for the monetary amount that Carlson Lynch wants in exchange for a release from its clients (but because not every visually impaired person in the United States is a Carlson Lynch client, other visually impaired individuals may still sue the website owner notwithstanding a settlement with Carlson Lynch’s clients).


A weakness in these plaintiffs’ cases is that the Department of Justice has never issued clear guidelines stating what minimum requirements must be met to comply with the ADA.Think of it this way, you’re in your car looking for street parking. You find a spot far away from the nearest fire hydrant and there’s no “No Parking” sign in sight. You park your car. Three hours later you return to find a freshly installed “No Parking” sign blocking you from opening your car door, three tickets on your windshield and a boot on the tire. Defendants’ lawyers call this a due process violation. Had you known that parking your car in that spot could lead to tickets and a boot, you probably would have parked in a garage.


On March 20, 2017, Judge Otero of the Central District of California Federal Court agreed in Robles v. Dominos Pizza LLC (16-cv-6599). Judge Otero held that WCAG 2.0 is not a standard against which websites may be measured because the DOJ has not issued a final rule regarding website access. In the absence of a final rule, website owners have no clear guidance as to what they must do to comply with the ADA. In the absence of clear guidelines from the DOJ, a website owner cannot possibly know whether its website discriminates against disabled individuals. It is also compelling that the DOJ has known of the need for clear guidelines, but despite issuing a Notice of Proposed Rulemaking on July 26, 2010, DOJ has yet to issue guidelines (during the Obama administration, DOJ promised clear guidance by 2018, that now seems unlikely). So Judge Otero dismissed the lawsuit.

 

Judge Otero’s decision is not binding on other courts, and it’s possible that other courts will not find the due process argument persuasive.There is already a split among the Circuits as to whether a website is a “place of public accommodation,” a threshold issue to an ADA violation. But Judge Otero’s decision is a bright beacon of hope.


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