Targeting Your Web Site: Accessibility Litigation Update

The Business Case

The main reason to start now and begin fixing accessibility issues is that it is much cheaper to pay developers to fix accessibility than to hire a team of highly paid lawyers to defend your company. Even hiring the best web developers in the world will be cheaper than lawyers. (Let's be very generous and assume ~$125/hr for a developer versus $200-400/hr for a lawyer.)

The worst case scenario for fixing a site is that you undergo a total recode and redesign. On the other hand, if you (your company) lose the case (a nationwide class action lawsuit), you're bound to lose millions, and the intangible brand trust and reputation that you've worked so hard to acquire and maintain. And you'll still need to fix the site. Even if you win, you could still potentially spend millions defending yourself due to legal fees. Even settling out of court is costly - Target is projected to spend $5 million if they win, or $20+ million if they lose or settle.

If you allow something like this to go to trial, you'll be fighting virtually every single blind person in the whole United States. Disabled people are the world's largest minority group (10% of world population.) There are 10 million visually impaired Americans (blind, limited vision, color-blindness, etc.), 15-30% of which use the internet. In California alone, there are 140,000 visually impaired people and 10,000 of them use the internet. That's a lot of people against you (and for that business case argument, it could also translate into lots of lost business.)

Keep in mind that websites shouldn't only be fixed for visually impaired guests, but for any type of handicap. Guests who are hard of hearing will not be able to take part in audio-only experiences and could also miss out on a lot of audio-visual experiences (think closed-captioning for web videos.) Other disabilities which restrict motor skills are also common and may be prevented by requiring certain mouse/keyboard/input usage (think "onclick" and "onmouseover" handlers.)

Federal Disability Laws

Section 508 Amendment to the Rehabilitation Act of 1973

The Section 508 amendment was passed in 1998 to expressly include websites under the Rehabilitation Act of 1973. Currently, Section 508 only applies to websites of Federal agencies (government and gov't contractors.)

Americans With Disabilities Act of 1990

The ADA applies to private businesses with "public accommodations" and requires those accommodations to be accessible for anybody, regardless of handicap. An example of this would be that hotels must have handicap ramps and elevators to the higher level floors. The ADA does not expressly mention web sites and historically, "public accommodations" have been viewed as a concrete, physical space for public access. But it seems that that definition is slowly changing.

Court Cases

Access Now, Inc. v. Southwest Airlines

Access Now, Inc. v. Southwest Airlines was the first case to address Title III's application to web sites. The case was dismissed by the judge in 2002, stating that "A public accommodation must be a physical, concrete structure." (The judge also determined that there were no standards for creating accessible websites and user agents - the w3c disagrees.)

National Federation of the Blind v. Target

A few years after the Southwest Airlines case was dismissed, feelings about website accessibility had changed. Probably the most well known lawsuit regarding website accessibility is the National Federation of the Blind v. Target. Target was sued for violating the ADA, as well as the California Unruh Civil Rights Act and the California Disabled Persons Act.

The NFB listed the following as the reasons which made Target's site inaccessible:

• It was not accessible to screen readers.
• Images were missing alt tags.
• The site used image maps for navigation.
• Images were used as form buttons.
• Images of merchandise were used instead of useful product descriptions.
• There was inadequate use of headers to structure content (screen readers use headings to jump around page content).
• Form labels were not used properly.
• Mouse input was required for major functions.

Under the ADA, Target stores are places of public accommodation. Target tried to get the case thrown out, arguing that they could discriminate on their website because web visitors are not in the store, and therefore not in a place of public accommodation. The court disagreed, saying that the ADA is broader than merely limited physical access. They said that the company must provide "full enjoyment" of services offered by covered public accommodation and that unequal access to target.com denies the blind the full enjoyment of the goods and services offered at Target stores, which are places of public accommodation. The case is still underway as far as I know.

Avoiding Lawsuits

You can minimize your liability by being proactive and fixing your site.

• Test your existing site.
• Make alt tags meaningful and unique, but not too long.
• Describe the functions of any image buttons used.
• Identify headings and don't skip header levels.
• Explicitly label form fields and associate labels with fields.
• Implement keyboard access techniques such as tabindex.
• When it comes to navigation, add "skip" links and use descriptive anchor text.

And when you get feedback, take it seriously and be responsive by fixing the problem quickly. When testing your site, be sure to involve disabled users. Try to design with accessibility in mind from the very start and offer equal alternatives.

Accessibility is good because it grows customer base, helps SEO, improves usability across devices (no need to rewrite your site for mobile!), and it prevents lawsuits! How can you go wrong?

Further reading

• Should Web-only businesses be required to be disabled-accessible?
• Recent Ruling May Extend Application of the Americans with Disabilities Act to Retail Web Sites
• Applying the Americans with Disabilities Act to Private Websites after National Federation of the Blind v. Target

Other cases which I couldn't find much on...

• Rendon v. Valleycrest Prod., Ltd. (the only way to become contestant on "Who wants to be a millionaire" was to phone screen for "fast fingers" requirement.)
• Ford v. Schering-Plough Corp.
• Stoutenborough v. National Football League