Web accessibility advocates breaking through in court?

Recently the University of California, Berkeley, took down online lecture and course content that it had offered free to the public, rather than risk liability for not modifying them so as to be conveniently usable by members of the public with hearing, visual, or manual disabilities. Harvard and M.I.T. had already been sued on similar grounds.

Now imagine the Berkeley take-down times 10,000 — a world in which private commercial, educational, and non-profit entities alike have legal incentive to de-publish any web content they do not think bulletproof against claims of lack of ADA accessibility. That’s not just imagining. It’s the world we’re looking at as a number of federal courts, setting aside years-old precedent, have begun to accept plaintiffs’ arguments that the ADA applies broadly to the web. As freelance lawsuits against private defendants proliferate, the choice is plain: either act to stop this trend, or expect widening disruption and takedown of formerly free web content.

In a much noted June case against the Winn-Dixie supermarket chain, a federal court accepted the notion that the store could be sued under the ADA because its website was a “place” of public accommodation, like a brick and mortar store. As Frank Cruz-Alvarez and Rachel Canfield observe in a Washington Legal Foundation paper, “the court found that the website was ‘heavily integrated’ and a ‘gateway’ to the physical stores, notwithstanding that the website limits customer participation to acquiring in-store coupons, refilling existing prescriptions for in-store pick-up, and utilizing a store locator function.” Since then federal courts have ruled favorably on ADA-for-the-web claims in more than one other case, including a decision by Judge Jack Weinstein of the Eastern District of New York in a case against Blick Art Materials.

I’ve been warning for a long time that web accessibility has the potential to be one of the most damaging and onerous regulatory initiatives in memory. It’s true that with courts split on the issue there is a chance that at some point the U.S. Supreme Court will take a case allowing to resolve the uncertainty and — if we are lucky — uphold earlier precedents such as that in a 2002 case in which a court dismissed a lawsuit against Southwest Airlines. In the mean time, entrepreneurial lawyers have been filing hundreds of lawsuits against local and national businesses over their websites, many of which settle for money out of court, and on the current momentum will soon be suing thousands more. Millions of existing web presences are uncompliant and easy targets for litigation. The real answer is for Congress to step in.

[cross-posted from Cato at Liberty]


  • Here’s the worst part – THERE ARE NO GUIDELINES AS TO WHAT ACCESSIBILITY IS. The conventional wisdom is that WCAG 2.0aa is acceptable – says who? The whole area is just another way to extract money from deep pockets to give to the trial bar.

  • Congress could preempt all of this, yes?, by legislating that a variety of formats, such as HTML, are to be considered accessible since their ubiquitous, open nature means they can be accessed by the disabled using various s/w tools.

  • No matter the issue or cause, it is always possible to push “Good” past “Great,” right over the edge into “plain downright silly.”

    Not sure what the limit should be – to offered accommodation to disabled. But forcing every free offering on the web to be universally usable seems to cross way, way, into the land of folly.

  • I have always wondered about this accessability scam. Are not libraries of books inaccessible to the blind? should they ths be all shuttered?

  • In other news Southwest Airlines is being sued because they have no job openings for blind pilots.

    sarcasm off.

    • Jim, I have a bit of problem with snark such as this. Sometimes I go overboard in my response. I hope to exhibit restraint this time.
      No, pilot and steward/ess is a bit out of reach. However, if their customer facing and internal systems were accessible call center and other jobs would then be available. Those who are visually impaired find it out of the question because of decisions made in implementation rather than by management as a policy. If southwestern as a matter of policy doesn’t want my business, then so be it. But excluding me because of poor coding practice not only from being a customer but also from being an employee is a bit much to accept.

    • It’s not that far off – See Sutton v. UAL.

  • Bob: access-board.gov, the new section 508 requirements use wcag 2.0 as their basis for web based applications.
    HTML requires a bit more than just s/w tools, that’s the point of wcag 2.0…
    John, see the national library service, NLS, library for the blind and physically handicapped established by congress over a century ago, so yes, there libraries have been addressed, at least in part.

    • Sorry Cecil, but the access-board is not a regulatory agency and their guidelines carry zero weight. Again, there is no enforceable guidance and you know it.

  • Winn-Dixie has filed a notice of appeal to the Eleventh Circuit.

  • cecil,

    I wasn’t being “snarky”. My point is that there are somethings that handicapped people are not going to be able to do. ADA states “reasonable access and accommodation” with out defining a meaning. ADA has been twisted and expanded upon by trial lawyers and activist judges so much that people and companies have no idea if they have done enough or not.

    A while back I went to community college. I was recovering from an injury and in a vocational rehabilitation program. Part of the program was working for the college. We had a grant for computer workstations. At that time there was a shortage of computers at the college. We had a large room assigned to us and we were to cram in as many workstations as we could. When I submitted my layout I had 60 workstations in the room. I was asked how many were wheelchair accessible? I said “The front twenty.” I was told that all of the workstations had to be wheelchair accessible because the college didn’t want to have the chance of a lawsuit. In the end we could only fit 40 workstations. We lost 20 workstations. The part that got me was that the room we were assigned was on the second floor of a building. The building was grandfathered in and didn’t have wheelchair access. Another thing was that in the history of the college the most students that they ever had in wheelchairs was five.

  • Lol Jim! Maybe you should have answered “all that can make it up the stairs” instead? Then they could have put it down on the first floor? My response hasn’t been to lawyer up. Instead I try to get in touch with the site admin(s), explain the problem, make suggestions for fixing it if I have any. I find that works much better. Okay, so it doesn’t result in a payday for anyone, but that’s not the point in the first place.

  • Individualized conversion of many files (e.g. Berkeley lectures) can be prohibitively expensive. Congress should empower the Library of Congress to create a web portal that the disabled can use to see converted versions of sites they are interested in. Congressional appropriations should emphasize *automated* techniques to read all sites, rather than a small number that happen to have been individually converted. With that principle established, Congress should shut down ADA lawsuits against individual sites, aka “reinventing the wheel.”

  • Bob, the access board sets the technical standard. No, they are not a regulatory agency, they are a standard setting agency. I thought you were asking about standards? Were you instead asking about regulations? If so, then I refer you to the ADA, section 501, section 504, section 508 and the telecommunications act of 1996, and other similar regulations, typically enforced by eeoc, doj, fcc, ftc, many federal agencies for internal matters, and individuals thru the court system.

    • Sure Cecil, and even those agencies have no idea what accessibility looks like. Try again.

    • and BTW, if these provisions actually gave any real guidance, then the long-awaited and never issued DOJ guidelines would not have been necessary. But of course, the plaintiffs’ bar would prefer that the legal standards were nebulous so to ensure that even those sites that are WCAG 2.0 AA compliant (the newest “consensus” standard) aren’t safe from claims.

      Why don’t we instead take away the ability to code HTML that doesn’t meet whatever standard you want websites to meet? Why isn’t HTML the culprit? Ahh, no big pocket to go after.

  • Hugo, are you telling me that neither institution has ever had a blind student? Weren’t the course materials supposed to be accessible to them? You act like it’s just the non-paying general public, my opinion is that it is more systemic and indicates a problem with their student body as well. But that is an assumption and I will leave it there. But I have not heard any reason that the materials should not have been accessible when produced for internal consumption, regardless of any decision to provide it free of charge to the general public.

  • And do you have any clue on whether any form of automated conversion is even technically possible? Many things are simply an order of magnitude or two easier to make accessible in the first place than to tack on some sort of attempt to cure defects after the fact. Example: government forms with the ability to accept electronic signatures. It is much easier to define the signature block when creating the form than having a screen reader try to figure out how to place a resizeable rectangle somewhere appropriate for the representation of the signature. Otherwise adobe just prompts you to place the block before it will let you actually sign it. When you’re not actually using a mouse that is difficult. How does an automated system describe a picture? How would it convey a flow chart?
    Seriously, screen readers process web pages as much as programmatically possible to try and make sense of them for the user. Malformed pages, graphics, abuse of standards, all go to make the job even more difficult. One site I frequent uses background images to convey information. My screen reader says “it’s a background image” and throws it out. These are the sort of issues I take up with the site admins/content creators. Sometimes they just like the way it looks and leave it broken for me, and I deal with it. Is it a temptation to run off to a lawyer? No. It’s an area that shows 1 to 5 stars, if it really matters to me I can review source code to see which file they pull. Having it speak when I get there would be great but i’m not going to die without it. It isn’t going to make or break my job. It isn’t going to leave someone else unemployed. Get the picture? They even work with me on other things that actually matter to me (even though it’s just a game). In short, there are trade offs that I understand. How easy is it to change, how much dev time does it take, what will be the impact to everyone else. I was and am a programmer, so I understand those concerns. Nowadays my programming is just scripts to make repetitive admin tasks a matter of running a script rather than the programs with tens or hundred of thousands of lines from my beginnings.

  • Cecil– An article (that I have lost track of) states that Berkeley has blind and other disabled students, and accommodates them up to ADA standards. But many of the old lectures were videotaped in classes that did not have disabled students. Berkeley is still ready to accommodate a disabled Berkeley student who is interested in a particular videotaped lecture.
    For a single disabled student, it might be cheaper to provide an assistant to explain or obtain the inaccessible material, rather than manually reformat the whole lecture.