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More Litigation About Accessibility

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The Americans with Disabilities Act (ADA) was signed into law by President George H. W. Bush in 1990, which was three years before the World Wide Web was officially released to the public.

Since then it has been cited thousands of times in lawsuits filed against hotels, restaurants and retail establishments to remove physical barriers for disabled people, and as early as 2009, the act was cited in lawsuits that targeted the websites of businesses and universities, saying that online portals must be just as accessible to disabled people as the buildings that house businesses and schools. It is true that so far, accessibility has not kept up with technology.

The problem can be blamed partially on lack of clarity. The ADA became law before the “internet of things” could even be imagined by the public, and the laws on the books just didn’t do the job necessary to protect people from being left out. Title III of the ADA – the section which governs discrimination in “any place of public accommodation” makes no mention of non-physical marketplaces like websites.

This ambiguity has led to a patchwork of inconsistent court decisions that attempt to interpret Title III and its reach. At one point the Department of Justice did attempt to issue guidance for website accessibility but it was never finalized. Adding to the stalemate, the Department of Justice announced that it would not issue any guidance as part of the Trump administration’s efforts at deregulation. So we wait and work with what we have.

To try and fill the void in legislation, Web Content Accessibility Guidelines (WCAG) were created. According to Wikipedia: “The Web Content Accessibility Guidelines (WCAG) are part of a series of web accessibility guidelines published by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C), the main international standards organization for the Internet. They are a set of recommendations for making Web content more accessible, primarily for people with disabilities—but also for all user agents, including highly limited devices, such as mobile phones. The current version, WCAG 2.0, was published in December 2008 and became an ISO standard, ISO/IEC 40500:2012 in October 2012. WCAG 2.1 is a “Proposed Recommendation” as of April 2018.”

In the last few years, thousands of lawsuits and counting have been filed by blind or visually impaired plaintiffs on the theory that: (1) commercial websites qualify as places of public accommodation; and (2) websites with access barriers (e.g., those that are not compatible with screen-reading software that vocalizes visual information on a computer screen) deny plaintiffs’ right of equal access in violation of the ADA and corresponding state law.

Plaintiffs have also challenged the accessibility of mobile applications and online job application systems. Many of the lawsuits are trying to address valid cases of inaccessibility, but there are many others that are a result of the litigious environment in the United States. People are always trying to game the system and make a buck. This becomes an expensive problem for businesses that have not kept up with ADA accessibility requirements in their online presence.

Until further laws are in place, following the WCAG guidelines is a good way to begin to make digital content accessible to all users, and certainly for people with disabilities.