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Website Accessibility and the Law..is this a thing?

Badged Google Partner
# 1
Badged Google Partner

Hi Guys,

This was forwarded to me and wanted to hear your take on it. Looking at it, I think it sounds a bit off, like a spammy thing to get people to buy something. I have never heard of this being an issue. Is this something that we need to be cognizant of in the future, or is this just bs? It looks like it was generated from a law firm.

 

California Ruling on Website Accessibility Highlights the Need for Proactive Measures

Author: Christopher F. Wong (Los Angeles) 

Published Date: May 4, 2016

 

Any business operating a website for use by customers or other members of the public should take heed of a recent California decision that found a retailer liable for violations of federal and state disability access laws based on a disabled individual’s inability to navigate a website using a screen reader program. 

In Davis v. BMI/BNB Travelware, the plaintiff, a blind individual filed suit against a retailer based on the theory that the retailer’s website, coloradobaggage.com, was not accessible to the disabled. The plaintiff maintained that his screen reader software (commonly used by individuals with visual impairments to access online content) experienced various problems when he was attempting to navigate the website, which had not been properly coded to be compatible with such screen reader programs.

A California trial court ruled in favor of the plaintiff on claims brought under the Americans with Disabilities Act and California’s Unruh Civil Rights Act, awarding monetary damages and broad injunctive relief against the retailer.   

The court’s ruling is noteworthy in several respects. First, the court decided the plaintiff’s claims on a summary judgment motion. As the court was willing to adjudicate complex and fact-specific legal issues at the summary judgment stage, the plaintiff and his counsel were not required to go through the effort and expense of a trial to prove the claims. 

Also, the court found the retailer liable for the alleged violations based on a relatively limited showing. For example, the court ruled that the website was subject to federal and state disability access laws based on a finding that a “sufficient nexus” existed between the defendant’s retail stores and the website, but the court’s written decision did not describe what constitutes a sufficient nexus or identify the particular website features that justified its determination. In his motion, the plaintiff argued that a sufficient nexus existed simply because the website contained a store locator and enabled visitors to learn about the products available for purchase in the defendant’s retail stores. Similarly, the court found that the plaintiff’s description of the alleged accessibility barriers on the website was sufficient to prove a violation of federal and state law, but the court’s ruling did not identify any specific accessibility regulations, guidelines, or other standards that it was applying, or the particular portions of the website that it found to be deficient. 

It is also noteworthy that the court ordered a monetary award ($4,000 in statutory damages under California’s Unruh Act) as well as a broad injunction against the defendant. The injunction required the retailer to make the website “readily accessible to and usable by visually impaired individuals” in accordance with the standards set forth in a submitted expert report (which, among other things, identified more than two dozen issues on the website requiring remediation under the Web Content Accessibility Guidelines 2.0, published by the World Wide Web Consortium) or “to terminate the website.” The plaintiff was also entitled to apply for an award of his attorneys’ fees and costs under the federal and state statutes.

As a state trial court ruling, the decision in Davis will not be published and is not binding on any other court. Not every case will be decided in the same manner. Still, the Davis ruling should serve as a warning to all businesses that operate websites used by the public. Website accessibility lawsuits have become increasingly common across the country, in particular in states with access laws providing for statutory damage awards. The Davis court’s decision to grant summary judgment and broad monetary and injunctive relief not only demonstrates the substantial risks faced by businesses, but it may also embolden potential plaintiffs and their counsel seeking to become active (or even more active) in this area of the law.  

Accordingly, employers with websites should consider taking proactive measures even before being subject to a lawsuit, a demand letter or a customer complaint. Businesses with existing websites may want to engage a website accessibility consultant to perform an assessment of the website, to offer options for whatever remediation may be necessary, and to assist with the implementation of procedures to ensure that new content and other future website changes do not lead to new accessibility problems. Businesses contemplating launching new websites should certainly be mindful of these issues and the need for specific contract terms with and measures to be used by their website developers to ensure compliance with applicable access laws.

 

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Accepted by Google Partners (Community Manager)
June 2016

Re: Website Accessibility and the Law..is this a thing?

[ Edited ]
Participant ✭ ☆ ☆
# 7
Participant ✭ ☆ ☆

Thanks for the tag. I wouldn't worry too much. Trial courts have made much crazier rulings. Trial judges are not the best when dealing with technology.... it's worst in patents when Judges are forced to determine the "novelty" of inventions.. But that's another rant.

Reason 1: It's a California trial court. Not a Federal court. And not a higher level court.

Reason 2: "As a state trial court ruling, the decision in Davis will not be published and is not binding on any other court. Not every case will be decided in the same manner." This leads me to believe the plaintiff has a unique set of facts almost no other plaintiff would have.

Hence I wouldn't worry. This was a unique plaintiff at a state trial court level. I'd be more impressed if they kick it up to Cali Court of Appeals and it survives there.


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Re: Website Accessibility and the Law..is this a thing?

Top Contributor
# 2
Top Contributor

@rachelle h,

 

I can only find the few links by the same law firm/Mr. Wong discussing this. Here is the first rendition of it. 

 

It says "As a trial court ruling, the decision in Davis will not be published and is not binding on any other court" and to correct the website or remove it... and when I checked the website, it has been taken down completely. 

 

This is profound for our industry, if it holds merit. @Tony_Guo would be someone that could possibly help us break this down to fact or fiction, since he is an attorney. 

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Re: Website Accessibility and the Law..is this a thing?

Explorer ✭ ✭ ☆
# 3
Explorer ✭ ✭ ☆
This may be related to 508 compliance. https://www.section508.gov
In truth, a lot of the compliance for meeting 508 is rather straight forward. Screen readers also do not like Flash, which is also getting phased out by many browsers. I think that if you can keep UX across devices uniform, then there I a pretty good chance you could make your website compliant without much additional effort.

The Unruh Civil Rights Act is real, but I haven't heard about it being applied to websites until now.
http://www.dfeh.ca.gov/Publications_Unruh.htm

Re: Website Accessibility and the Law..is this a thing?

Badged Google Partner
# 4
Badged Google Partner

Good call @James_Clemens. I can see that the actual website for colorado baggage was taken down, which is interesting. 

 

It looks like this was put out by a law firm called Ogletree Deakins out here in CA as well. I think it’s a scare tactic, personally, but I want to investigate it further in case this is something we all need to be aware of. I have not heard of accessibility options being built into a website in 10+ years of doing this. Most websites are pretty accessible by default.  

 

This seems more like an issue with the surfers operating system and browser, as opposed to the website.  Either their operating system/browser supports accessibility or it doesn’t. (At least that's what I think, I am not 100% on this since this is a new concept.)

 

There are so many sites to choose from out there, and the fact that this guy won ($4,000) for this case is pretty crazy.

http://www.proskauer.com/files/uploads/Documents/2016_davis_bagnbaggage.pdf

 

Re: Website Accessibility and the Law..is this a thing?

Top Contributor
# 5
Top Contributor

Good info @miguel m.

 

I like to refer to the W3C when I need to expand on anything related to website operations. They provide this info regarding access.  

 

I think between your links on 508 compliance and the Unruh Civil Rights Act, and mine from the W3C, we have a solid facts to stand on.

 

I still hope Tony can add to this most interesting conversation. He might want to add this to his teaching site, too (if this has merit as factual law). I still find it hard to believe that every website has to conform since most do not. This is either a sham (like @rachelle h is considering) or the next sue-happy platform of tomorrow and a whole lot (my guess would be 75%+) of website are in trouble. Amazon? Google? Microsoft? Adobe? Intel? 

 

If the precedent/law is true, maybe compliance could be as easy as adding a RSS feed? 

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Re: Website Accessibility and the Law..is this a thing?

Top Contributor
# 6
Top Contributor

Exactly, @rachelle h. That is what I was thinking... a  unique web browser would be what someone with disabilities to read, see or type would have. 

 

This is a great topic to discuss so thanks for cracking it open, @rachelle h!

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Marked as Best Answer.
Solution
Accepted by Google Partners (Community Manager)
June 2016

Re: Website Accessibility and the Law..is this a thing?

[ Edited ]
Participant ✭ ☆ ☆
# 7
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Thanks for the tag. I wouldn't worry too much. Trial courts have made much crazier rulings. Trial judges are not the best when dealing with technology.... it's worst in patents when Judges are forced to determine the "novelty" of inventions.. But that's another rant.

Reason 1: It's a California trial court. Not a Federal court. And not a higher level court.

Reason 2: "As a state trial court ruling, the decision in Davis will not be published and is not binding on any other court. Not every case will be decided in the same manner." This leads me to believe the plaintiff has a unique set of facts almost no other plaintiff would have.

Hence I wouldn't worry. This was a unique plaintiff at a state trial court level. I'd be more impressed if they kick it up to Cali Court of Appeals and it survives there.


Re: Website Accessibility and the Law..is this a thing?

Badged Google Partner
# 8
Badged Google Partner

Thanks @Tony_Guo.

 

The part that confuses me is where they say that the decision won't be made public, but then it says that they were paid $4,000 and the site was taken down. Is that the official ruling on it? If so, that still sounds kinda scary. Still seems weird that someone wouldn't use another website and would choose to sue, but then it makes me wonder if anyone else out there could do that as well. (I mean, I guess anyone can sue whomever and the odds are small, but it might inspire others to do the same?)

 

It is also noteworthy that the court ordered a monetary award ($4,000 in statutory damages under California’s Unruh Act) as well as a broad injunction against the defendant. The injunction required the retailer to make the website “readily accessible to and usable by visually impaired individuals” in accordance with the standards set forth in a submitted expert report (which, among other things, identified more than two dozen issues on the website requiring remediation under the Web Content Accessibility Guidelines 2.0, published by the World Wide Web Consortium) or “to terminate the website.” The plaintiff was also entitled to apply for an award of his attorneys’ fees and costs under the federal and state statutes.

Re: Website Accessibility and the Law..is this a thing?

Top Contributor
# 9
Top Contributor

I feel much better now that @Tony_Guo offered some legal insight. 

 

I thought that would be the case but wanted to verify further... and this has been a most interesting conversation. This thread now has some great resources, too. 

 

Happy Friday and be Google great!

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Re: Website Accessibility and the Law..is this a thing?

Participant ✭ ☆ ☆
# 10
Participant ✭ ☆ ☆
Happy Friday. This was a great discussion! I enjoyed reading the comments a lot.