American ADA Legal Cases & The Impact On Global Accessibility
By Helen Burge
Most companies and people have heard about accessibility, but the majority are those affected or potentially affected by legal suits. Large American companies with eCommerce sites have seen a large increase in ADA Title III cases. The legal implications are being felt on a global level as many companies are multinational. In this article, we will look at the current legal requirements for accessibility across the World, and examine the increase in legal cases and their merits.
Legally, the Web Content Accessibility Guidelines (WCAG) version 2 are used as a basis for the majority of Countries. There is a more recent version of WCAG 2.1 released in June 2018, but the laws are a step behind at this point (July 2019).
High Overview To Legal Requirements
Most legal requirements tend to be for those that work on or with government agencies. Some also have laws for public and/or private sectors to ensure online and in the odd case, offline electronic content is accessible. There are some proactive countries with more than one law to cover content, from buying from new vendors, to protect disabled people from being at a disadvantage. Countries that only provide laws for government agencies are not ignoring the public, governed by the state, and private, not under state control, sectors. Private legal cases can occur and be tried successfully.
Legal Standards Across The Globe
See the full details in the W3C list of legal policies. Some Countries will appear in more than one list due to having more than one law around accessibility. Unless stated otherwise, the laws cover both online and offline content.
Countries that Use WCAG 2.0 for a Basis in the Law:
- Australia: The government Procurement Standard Guidance of 2016 and the public and private sector Disability Discrimination Act 1992 (DDA).
- Canada: The government Policy on Communications and Federal Identity of 2016.
- Denmark: The public sector Agreement on the use of open standards for software in the public sector of 2007 covers web-only content.
- European Union: The public sector Web and Mobile Accessibility Directive of 2016.
- Hong Kong Special Administrative Region of the People's Republic of China: The government Guidelines on Dissemination of Information through Government Websites of 1999.
- India: The government Guidelines for Indian Government Websites of 2009.
- Ireland: The public and private sector Equal Status Acts 2000 to 2004.
- Israel: The public and private sector Equal Rights of Persons with Disabilities Act, as amended in 1998.
- Italy: The public sector and government Law 9 January 2004, n. 4 "Provisions to support the access of disabled people to IT tools" (Stanca Law) of 2004.
- Netherlands: The government Procurement Law 2012 enacted in 2016 and the public sector and government Policy in the Netherlands of 2016 that covers web-only content.
- New Zealand: The government Online Practice Guidelines of 2013 that covers web-only content.
- Switzerland: The public and private sector Federal Law on the Elimination of Inequalities for Persons with Disabilities, as amended in 2002.
- United Kingdom: The public and private sector Equality Act 2010.
- United States: The government Section 508 of the US Rehabilitation Act of 1973, as amended in 1998 and the private sector Air Carrier Access Act of 1986 of 2013.
Countries that Use a Derivative of WCAG 2.0 for a Basis in the Law:
- China: The government Voluntary Web Accessibility Standard of 2008 that covers web-only content.
- European Union: The public and private sector European Accessibility Act (proposed) it has been approved in April 2019 but not enforced yet.
- France: The public sector Order of 29 April 2015 on the general accessibility framework for public administrations of 2015 that covers web-only content.
- Germany: The government Federal Ordinance on Barrier-Free Information Technology of 2011 that covers web-only content.
- Norway: The public and private sector Regulations on universal design of ICT of 2013.
- Republic of Korea: The public and private sector Act on Welfare of Persons with Disabilities of 2008.
- Taiwan: The public sector Web Accessibility Guidelines 2.0 of 2017 that covers web-only content.
Countries that Use a Derivative of WCAG 1.0 for a Basis in the Law:
United States: The public sector Section 504 of the U.S. Rehabilitation Act of 1973, as amended in 1990.
Countries that have Accessibility Laws with no WCAG Basis:
Most accessibility laws are formed using WCAG as a basis, but the following laws were formed using other aspects, like actual experiences or legal precedence:
- Canada: The public and private sector Canadian Human Rights Act of 1985.
- China: The public and private sector Law on the Protection of Persons with Disabilities 1990, as amended in 2008.
- Finland: The government Act on Electronic Services and Communication in the Public Sector of 2003.
- France: The public sector Law N° 2005-102 Article 47 of 2005 and the public and private sector Law N° 2016-1321 Article 106 of 2016.
- Germany: The public and private sector Act on Equal Opportunities for Disabled Persons of 2002.
- India: The public and private sector Rights of Persons with Disabilities Act, 2016 (RPD).
- Ireland: The public sector The Disability Act, 2005 and the public and private sector Employment Equality Acts 1998 and 2004.
- Japan: The public and private sector Basic Act on the Formation of an Advanced Information and Telecommunications Network Society of 2000.
- New Zealand: The public and private sector Human Rights Act 1993, including amendments.
- Sweden: The public and private sector Discrimination Act (2008:567).
- United States: The public and private sector Americans with Disabilities Act of 1990 (ADA), as amended in 2009, the public and private sector Section 255 of the Telecommunications Act of 1996, and the private sector 21st Century Communications and Video Accessibility Act of 2010 (CVAA).
Legal Cases And Accessibility
Legally all eCommerce sites should be accessible to all users. Ideally, all companies that provide a service should not discriminate against disabled or in some cases, “normal” users when it comes to using their services. In reality, many companies do not think about accessibility until it becomes tangible or real to them. This can happen due to personal experience(s) of a disability, working with government agencies that require accessibility or a legal case. These are two extremes but often after the initial exposure companies can see the merit of becoming more accessible.
This was shown in the US by the well known legal case against Target Corp. Target was approached by the National Federation of the Blind (NFB) with accessibility failures for their website. A year of negotiations saw no changes or updates by Target so the NFB filed a class action lawsuit. The legal action resulted in a $6,000,000 settlement in 2008 and $3,738,864.96 attorney’s fees and costs to the plaintiffs in 2009. After this finding Target has worked hard to turn accessibility around and are one of the best examples of an accessible eCommerce site today. They also enforce accessibility to any of their suppliers if they want to work with Target. This legal case was one of the first ones of its kind highlighting online accessibility.
Other Countries have had the odd legal case like the BMIBaby website in the UK being sued in 2012. The Royal National Institute for the Blind (RNIB) completed an audit but a year after completion no action had been taken. The RNIB sued as felt raising the profile and urgency was the only way to resolve the issues.
These cases led most to assume that a legal case will only happen if initial feedback is ignored. This is true for most Countries.
American Disability Act (ADA) Cases In America
Since the Target case, America has seen a large growth in ADA Title III plaintiffs. These are not just against websites, but any form of discrimination based on a disability by businesses and non-profit agencies. Often these cases are not taken to court as they are settled before they get there.
In 2017 there was a groundbreaking case against Winn-Dixie where they were sued just on their website under ADA. This was the first case that was tied to the law. Another key finding was that third party code must be compliant. This was a grey area previously but now it has been stated that the owner of the website must ensure all vendors are compliant. The case had the plaintiff Juan Carlos Gil who had filed at least 70 cases at the time of the lawsuit.
Since the Winn-Dixie case, more accessibility cases for websites have been created. Of the 10,163 ADA Title III cases raised in 2018, 2258 were for websites.
Figure 1: From the Article Number Of Federal Website Accessibility Lawsuits Nearly Triple, Exceeding 2250
The increase has no clear reason for why it happened. It could be due to previous cases setting a precedent, the legally grey area in ADA for websites, or the plaintiffs trying to get “easy cash”. Due to the increase of lawsuits and a scrapped plan to draft specific rules on website ADA compliance, there is no clear guidance on how to be compliant legally.
In the last few months, there has been a change in direction for managing the large increase in legal cases. A positive change was a judge ruling that a serial plaintiff and lawyer be held accountable for using ADA cases as a way to fill their bank balances. This was due to the plaintiff Alexander Johnson earning over $84,500 over 3 years from the cases.
The lawyer, Scott Dinin, was also working with other serial plaintiffs like Gil in the Winn-Dixie case. This ruling was welcomed by most, as many in the industry dislike the ambulance chaser mentality being associated with accessibility. The main negative could be the ground breaking cases may see it as a way to overturn court decisions. One such case includes Domino’s going to the supreme court stating their website and applications do not require to be accessible as too costly to fix. They also claim that ADA does not apply to websites and applications.
This legal case was raised as Title III requires to explicitly state how people should make their websites and applications accessible but was overturned by the Supreme Court. These cases are marking the way to stop serial plaintiffs but making sure anyone with a valid case can sue the company at fault.
Global Effect Of American Lawsuits
Many American companies have a global presence. This means that offices in other countries are likely to have the new accessibility code base and practices transfer. The raised awareness of potential legal action can create a sense of fear in companies that can make change happen. This can also cheapen the efforts from focusing on users to focusing on legal compliance.
There have been several discussions in the accessibility community on this subject. The consensus is that many lawsuits are using HTML validators to find obvious issues. Fixing these should stop those after a quick payout, but will not make a website truly accessible. A full audit from a recognised agency is the best way to make a website accessible to the majority of disabled users and mitigate risk.
- Web Accessibility Laws & Policies - W3C
- National Federation of the Blind v. Target Corp. - Wikipedia
- First Federal Court Rules That Having An Inaccessible Website Violates Title III Of The ADA by Minh N. Vu
- Number of ADA Title III Lawsuits Filed in 2018 Tops 10,000 by Minh N. Vu
- Got access for people with disabilities covered? Don't forget your website by Gene Marks
- Florida Judge Sanctions Serial ADA Plaintiff Alexander Johnson and Attorney Scott Dinin by Minh N. Vu
- Domino’s asks the Supreme Court to shut down a lawsuit requiring its website be accessible to blind people by Nick Statt
- Supreme Court hands victory to blind man who sued Domino’s over site accessibility by Tucker Higgins
After leaving university Helen worked in testing and part of all her roles involved accessibility testing. This is because she felt users were unappreciated in the need to make websites and applications accessible. Helen worked closely with developers to help learn the most effective way to find and report issues. From this, she was able to create a large accessibility offering for Applause from scratch. Since then she has worked for Tenon.io and now works for Deque. Helen can be found on Twitter @helen_burge