Posts Tagged ‘web accessibility’

Getting ready for ADA website regulations

As I’ve said more than once, I view the Department of Justice’s much-delayed plans to mandate “accessibility” of websites under the Americans with Disabilities Act (ADA) as perhaps the single most under-reported and alarming regulation that I know of in the federal pipeline. Here is a June rundown from Porter Wright attorneys Bob Morgan and Melissa Barnett of the state of play on the issue. It notes, as has our coverage, that even without getting around to issuing regs, DoJ is busy using ADA settlements to impose its views of accessibility on businesses it sues.

The article affords some glimpses of the staggering hassles that lie ahead for those who sell or promote products or services online, including for many the likely need to hire not just consulting help but full-time web accessibility specialists. Just one excerpt:

…making a website accessible to disabled users centers on design and functionality. The complexity of achieving this objective varies by the “type of content, the size and complexity of the site, and the development tools and environment,” according to the World Wide Web Consortium. But hundreds of design options exist to make a website accessible; WGAC 2.0 [the Web Content Accessibility Guidelines] alone provides 206 options. These include, but are not limited to, providing links to definitions, removing time limits for activities, providing spoken word versions of text, and ensuring keyboard control for all website functions.

One wording in this passage strikes me as a bit peculiar. To say that WGAC “alone provides 206 options” might suggest that achieving legal compliance is a snap — look, there are 206 options to comply, just pick one. But it doesn’t mean that, does it? Just because you’ve arranged to “provide spoken word versions of text” to fend off a lawsuit on behalf of blind users doesn’t mean you can get out of a lawsuit representing persons lacking fine hand motor control for not “ensuring keyboard control for all website functions” (i.e., disabling any mouse-only functions and patching any failures this generates in your current design). And even if you can do both those things along with fifty more, you may still be exposed to a lawsuit if you haven’t gotten around to “removing time limits for activities.”

According to Porter Wright’s Morgan and Barnett the Department of Justice is now expected to release its new rule in April 2016. Do not count on Congress to save the day; its record in the past under both Republican and Democratic leadership has been one of stepping in to expand the scope of the ADA, not rein in its more extreme applications. A better hope is the courts, which, despite some recent erosion, have not overturned some noteworthy precedents in which judges declined to extend ADA regulation wholesale from physical to virtual “space.”

Discrimination law roundup

  • Another web accessibility settlement from the U.S. Department of Justice, this time Carnival cruise lines [Minh Vu and Paul H. Kehoe, Seyfarth Shaw, my warnings on legally prescribed web accessibility]
  • A topic I’ve often discussed: “Has The ADA Broken Its Economic Promises To People With Disabilities?” [Amelia Thomson-Deveaux, Five Thirty-Eight]
  • Nebraska meat-packer tried too hard to hire only legal workers, will now pay dearly for asking for too many documents [Department of Justice press release]
  • Owing to discrimination, a Colorado couple had to drive a few extra miles to get a cake, and fly 2000 extra miles to get a marriage license. So guess who’s now in legal trouble for inconveniencing them [Jacob Sullum, New York Post] Sen. Ted Cruz sounds as if he might be skeptical of religious discrimination laws as applied to public accommodation, and down that path might be found libertarian wisdom [Scott Shackford, Reason]
  • EEOC says University of Denver Law School must pay its female faculty more [Denver Post, TaxProf]
  • “Court Rejects The EEOC’s Novel Attempt To Impose Disparate Treatment Liability Without Any Injury” [Seyfarth Shaw; EEOC v. AutoZone, N.D. Ill.]
  • Because more coercion is always the answer: France considers ban on “discrimination” against poor [Frances Ryan, The Guardian]

The Americans with Disabilities Act at 25

Today is the twenty-fifth anniversary of the Americans with Disabilities Act. Listen to Diane Rehm’s roundtable on the law with me and other guests here:

Five years ago I wrote on the occasion of the ADA’s 20th anniversary. I criticized the more recent, United Nations-drafted Convention on the Rights of Persons with Disabilities in this 2012 piece. And the potentially massive disruptions to be expected from a legal requirement that websites be “accessible” — a regulatory idea that the Obama administration is thought to be in the very final stages of considering — have been a regular theme here for many years, as has the harm done by ADA filing mills that file accessibility complaints by the batch against businesses and property owners, often with recovery of attorneys’ fees in mind. More: James Bovard, USA Today.

Here come the web accessibility regs, cont’d

Amy Alkon discusses with readers the regulations for private online commerce and publishing expected soon from the federal government, drawing this comment signed Lamont Cranston:

This is no joke. If you work for Federal Money, which I do, everything published to the web must be Section 508 compliant.

It’s like a choke chain on a leash. Many, many tools and features useful to 99% of your users must remain unavailable because 1% of the people who come to your site might not be able to use them.

It’s one of the reasons ANY federal web site is so BORING in design.

More: Scott Greenfield, Simple Justice (“The Public Accommodation Formerly Known As SJ”)

Disabled rights roundup

  • Per The Economist, long-awaited Justice Department rules decreeing ADA accessibility for websites (earlier here, here, etc.) expected any day now, “in June. For example, each picture must have text describing it, so that screen-reader programs can tell blind people what is there.” Individual enforcement actions, as against Peapod, aren’t waiting [DoJ press release] Settlement with MOOC firm signals DOJ plans to deal with online education providers [Cooley] Contributor believes it’s a snap to include online captioning in all online Harvard and MIT courses, so what’re they waiting for? [Time]
  • Rest of the Economist article is of interest too, especially on ADA filing mills in Florida and elsewhere;
  • In Sheehan v. San Francisco, Ninth Circuit created right to ADA accommodation in confrontations with law enforcers, SCOTUS reversed on other (qualified immunity) grounds [Mark Pulliam, City Journal; Richard Re, Prawfs]
  • Commemorations of 25th anniversary of the ADA — here’s what I had to say about the 20th — include plans “to hold [various Chicago institutions] publicly accountable for their commitments” to, inter alia, “increase civic engagement around disability issues” [Michael Waterstone, Prawfs]
  • Sacramento: “Squeeze Inn owner joins fight against costly ADA lawsuits” [KCRA]
  • Spread of fake service dog paraphernalia alarms groups that work with actual service dogs [BBC]
  • Intended class-action plaintiff sues McDonald’s over new style Coca-Cola Freestyle dispensers, saying touchscreen format unfair to disabled users []

From mass copyright complaints to web accessibility: one lawyer’s journey

Fifteen years ago, I wrote the following, to considerable skepticism from some ADA advocates, about the idea that online publishers should be legally obliged to make their websites “accessible” to blind, deaf, and other disabled users:

If it’s easy for entrepreneurial litigators to stroll down the main street of a town and find stores vulnerable to an ADA suit because their water fountain or pay phone is at the wrong height, it’s even easier for them to surf the Web and find sites that flunk the most widely accepted disability guidelines. Assuming a court can be found with proper jurisdiction over them, the next logical step is the filing of accessibility complaints by the cartload.

Federal courts were cool toward the idea of obligatory web accessibility, but more recently it has been stirring back to life, in part owing to an Obama administration move to revitalize the idea. And while it’s taken me a while to catch up with the story, it appears that at least one practicing lawyer has indeed spotted a niche for the mass filing of ADA suits against small businesses over their online presence.

That lawyer is Minneapolis-based attorney Paul Hansmeier, who fittingly or otherwise was previously associated with the now-disgraced Prenda Law Group, which engaged in mass copyright complaint filing against computer users recorded as downloading certain X-rated materials. Mike Masnick at TechDirt followed the adventures of Hansmeier and his Class Justice in multiple web-accessibility filing in this 2013 post with sequel and even more entertaining followup (channeling Dan Nienaber, Mankato, Minn., Free Press). Now Tim Cushing at TechDirt reports that Hansmeier is running into a bit of resistance in the form of a counterclaim by one of his targets, Kahler Hotels.

Disabled rights roundup

  • Blockbuster “web accessibility” issue, with potential for massive disruption of online life, continues to drag on without action in Washington despite urgings from academics; but at Ninth Circuit’s behest, California Supreme Court will decide whether state’s Disabled Persons Act covers websites [David Ettinger, Horwitz & Levy] More: Amy Alkon and commenters;
  • Federal district judge (E.D.N.Y.), suspecting foul play in multiple ADA filings, sends staff to investigate, but that’s a no-no as the Second Circuit reminds him [Josh Blackman]
  • Noting “continuing paranoia and obsession,” Vermont Supreme Court rebuffs bar applicant claiming discrimination on basis of mental illness [ABA Journal]
  • Just fine and dander: optician’s shop in suburban Detroit turns down worker’s request to bring service dog for generalized anxiety disorder, will pay $53,000 in settlement [EEOC]
  • Attack on “sheltered workshops” fits into multi-front effort to extend reach of federal wage-hour law: “Landmark DOJ settlement with RI provides road map to disability-law compliance for 49 other states” [ABA Journal]
  • Coalition politics counts: prominent disabled-rights groups [AAPD, DREDF, Bazelon Center, etc.] favor driving up cost of at-home attendants at expense of their own putative constituents [Benjamin Sachs, On Labor, on Harris v. Quinn amicus]
  • “Alcoholism and the ADA: Not as clear-cut as you think” [Dan Wisniewski, HR Morning, on Crosby v. F.W. Webb Co.] “Playing golf and having sex are major life activities under the ADA” [Eric B. Meyer]

Pending ADA regulations menace Internet freedom

It’s potentially the biggest regulation in the federal pipeline that most people don’t know about — and it’s aimed straight at the freedom to publish of the Internet. I explain at Cato at Liberty. More: Coyote (“The implications could be staggering, and in certain scenarios would basically force me to certainly close down this site, and likely close down many of my business sites.”)

Disabled rights roundup

Free speech roundup

  • Alarms re: proposed new UK code to regulate press, both print and electronic [John O’Sullivan, Andrew Stuttaford] “Why we won’t sign the press-regulation Charter” [The Spectator: Nick Cohen]
  • Also from the UK: “Police investigate Conservative MP Tim Loughton for calling man ‘unkempt'” [Telegraph]
  • “Teenager arrested for tweeting rap lyric containing the word ‘homicide.'” [Ann Althouse]
  • “CNN Argues that Requiring Captioning of Web Videos Would Violate Free Speech” [Disability Law, Courthouse News; more on new web accessibility push]
  • Administrator at Yeshiva U. hires lawyer to get posts removed from prominent law blogs, Streisand Effect ensues [Scott Greenfield]
  • Philly Mayor Michael Nutter sends letter to city human relations commission demanding investigation of Philadelphia Magazine for publishing article he dislikes [Ken at Popehat, Hans Bader]