Hundreds of companies, including at least three on Long Island, are facing lawsuits claiming their websites are not accessible to the disabled.
A person who is blind or deaf could not access the information on the sites, sometimes because the sites are not compatible with assistive technology such as software that reads text aloud, the suits claim.
The lawsuits are based on an interpretation of the Americans with Disabilities Act, which requires that public accommodations be accessible to disabled people. While the 1990 law does not specifically address websites, the U.S. Department of Justice has maintained in past court filings that they are covered.
But long-awaited DOJ regulations governing website accessibility, in the works since 2010, appear to have been tabled, leaving companies with no clear federal guidelines about what's required of them.
The issue continues to heat up, with at least 1,053 website accessibility lawsuits filed in the first six months of 2018, compared to 814 in all of 2017, according to Chicago-based law firm Seyfarth Shaw LLP.
“Given where the courts are coming down on this issue, businesses need to focus on making their websites accessible as quickly as possible,” said Minh Vu, a partner in Seyfarth Shaw’s Washington, D.C., office and head of the firm’s ADA Title III specialty practice team.
The majority of court decisions have gone against companies, and that’s “fueled this lawsuit craze,” Vu said.
In August, three Long Island firms—Patchogue-based Blue Point Brewing Co., New Hyde Park-based Dental365 and Jericho-based American Dental Offices PLLC—were among more than two dozen firms named in lawsuits filed by Edwin Diaz of the Bronx.
An attorney for Diaz declined to comment on the litigation. Diaz is described in court documents as a “visually impaired and legally blind person who requires screen-reading software to read website content using his computer.”
Philip Hirschhorn, CEO of American Dental, called the lawsuit “ridiculous and frivolous.” The company's web provider ran a test of its website that showed it was compliant and accessible to visually impaired people, he said, adding that he received no warnings or letters prior to the lawsuit's being filed.
Blue Point and Dental365 didn’t respond to requests for comment.
To be sure, for those with disabilities, it can be difficult to navigate websites for various reasons, including that they aren’t coded to accommodate technologies like screen readers and other assistive devices, said Mike Caprara, chief information officer at the Viscardi Center, an Albertson-based network of nonprofits that provides services to children and adults with disabilities. The center recently launched a service for businesses, government agencies and school districts to assist them in making their websites more accessible.
“We were getting quite a number of inquiries,” Caprara said.
The visually impaired may gain access to navigate websites using devices such as braille keyboards or magnifier applications.
Without DOJ guidelines, experts believe, lawsuits will continue.
“There needs to be [DOJ] guidance,” said Tom Stebbins, executive director of the Albany-based Lawsuit Reform Alliance of New York. “Businesses across New York are completely unprotected, and they’re unprotected because they have no guidelines.”
The alliance came out with a report in March that discussed rising litigation and, in particular, abuse of the Americans with Disabilities Act by serial plaintiffs represented by “profit-seeking lawyers.”
That’s not to say there aren’t legitimate cases filed, said Stebbins, “but it’s impossible to know what’s legitimate when functionally every website could be in violation because the DOJ has not provided clear guidelines about how the ADA applies to websites.”
The DOJ declined comment to Newsday on proposed regulations. It started the regulatory process in 2010 and at one point said proposed rules would be issued this year, but according to Vu, the whole regulatory process is now “dead.” The rules were put on the inactive list last July and then late last year formally “withdrawn,” she said.
In the absence of those guidelines, businesses should follow the voluntary guidelines set forth by the World Wide Web Consortium (W3C), said Philip Voluck, co-chair of the employment law department of Woodbury-based law firm Kaufman Dolowich & Voluck, which has developed a specialty in web accessibility.
Those guidelines—mandatory only for airline carriers, who are required to comply with them on their primary websites — are “still the holy grail,” he said, noting firms shouldn’t wait to get sued. And while adopting all of W3C’s recommendations might not be feasible due to cost, which can run in the thousands depending upon the complexity of the site, firms can “do what is reasonable within the context of their business,” Voluck said.
He recommended firms hire an IT expert to assist in determining deficiencies in their websites.
Beyond that, best practices include making sure website documents are accessible to individuals with visual disabilities who use screen readers and other assistive technology; making sure the color contrast meets accessibility standards; and having various formats for embedded video available that include closed captioning and audio descriptions, Caprara said.
This isn’t only to avoid litigation,Voluck said. It “makes good business sense,” considering individuals with some type of disability represent more than 20 percent of the population, he said.
Show Me The Money
Businesses with websites that aren’t accessible to the disabled are missing out. The Return on Disability Group, a Toronto-based research organization, estimates that Americans with disabilities have a disposable income of between $645-billion and $900-billion.