This post is adapted from the article, “Pandemic Response, Elections, Virtual Classrooms, And Remote Work Drive Online Accessibility Legal Activity. A Look Back at 2020.,” originally published in the February 2021 issue of Mealey’s Litigation Report: Cyber Tech & E-Commerce. Mealey’s is a subscription-based information provider and a division of LexisNexis. Copyright © 2021 by Sean McElaney. Any commentary or opinions do not reflect the opinions of Microassist or LexisNexis, Mealey’s.
Over the past decade, certain courts have struggled with how to handle website accessibility cases. There are different guidelines that companies are encouraged to consider when creating digital media, the most recent of which being WCAG 2.1 AA.1 However, there is still a lack of federal guidance on the issue. This past year, two US Congressmen, Lou Correa (D-CA) and Ted Budd (R-NC), sought to put an end to the perceived vagueness and questions by proposing the Online Accessibility Act (OAA). The legislative effort failed to move forward upon being met with skepticism and judged lacking by many in the advocacy community. Legislation of this nature will hopefully begin to clear the confusion on how ADA regulations should be applied to websites, mobile and desktop apps, and any other online presence. Until that day comes many businesses are left as potential sitting ducks for serial litigators seeking to take advantage of the lack of federal regulation.
Last year made history in almost every aspect, digital accessibility litigation was no exception. As most aspects of daily life moved online, a need for accessibility was more apparent than ever. However, litigation was temporarily put on hold as courtrooms around the country shut down in March. By the end of the year accessibility lawsuits made a rebound and continued the upward trend seen in recent years. As 2020 left an impact on all aspects of our digital lives, this recap seeks to emphasize the most important accessibility litigation news of the past year.
Website Accessibility Lawsuits Dip As Lockdowns Begin, Bounce Back By Year End
2020 marked the 30th anniversary of the Americans with Disabilities Act (ADA) and with that came another historic year for accessibility litigation, continuing the upward trend of the past decade. Pandemic lockdowns and courtroom uncertainty led to mid-year numbers seeing a dip of 15% compared to the previous year.2 However, lawsuits did rebound in the second half of the year finishing the year off up 23% from 2019. This increase in cases was in part due to serial litigators representing only 10 law firms filing approximately 70% of all filings in 2020. Additionally, the top three states for litigation remained the same as in recent years, with New York, California, and Florida accounting for 90% of cases filed.3
This year, as different aspects of our culture were forced into an entirely online existence, we saw some industries being hit harder than usual. Retail, a common target for website accessibility litigation remained among the most affected as online shopping increased in prevalence. The food service industry was also hit hard due to online ordering platforms, digital menus, and mobile apps being their only form of business during lockdown. The education sector was also hit hard this year, as students with disabilities were left behind when classes moved online.
Inaccessible Election Procedures Result In Several States Being Sued
The biggest accessibility news story of the year centered around the 2020 presidential election. Voting accessibility has been an issue in previous elections but this year there were new challenges to contend with. People with disabilities represent the largest minority within the United States.4 At approximately 50 million people, this demographic represents an important part of our democracy provided they are given the opportunity to vote.
In the past, voting issues usually centered around accessibility of polling places, and polling machines. The Help America Vote Act of 2002 requires that every polling station in the country have at least one accessible polling booth.5 However, many states do not have an accessible absentee ballot system in place for voters with disabilities to vote from home. This year, as a global pandemic continued to rage on, many voters who feared for their health and safety opted for mail-in ballots instead. With many government officials, including the President of the United States, opposing the widespread use of mail in ballots, claiming there was an increased risk of fraud, many voters with disabilities did not receive the accommodation they needed to vote.
For voters who have disabilities that prevent them from marking their own ballots this issue is even more complex. Without the availability of accessible mail-in ballots, voters were forced to choose between risking their lives to go to the polls, give up any confidentiality in their ballot, or not vote at all. For this reason, voters took matters into their own hands by filing lawsuits against their respective state or local governments when they were not receiving the help they needed. Pennsylvania, Maine, New Hampshire, New York and Virginia began issuing accessible mail-in ballot options as the result of these lawsuits, with litigation still pending in many other states.6 This election cycle exposed many flaws in our voting infrastructure, but also resulted in progressive steps forward in voter accessibility.
MIT Settles Closed Captioning Lawsuit, Universities Under Fire For Virtual Classroom Accessibility
In February, Massachusetts Institute of Technology (MIT) settled a case originally brought by the National Association of the Deaf (NAD) in 2015. In their settlement, MIT agreed to provide closed captioning for its online educational content. During their filing, the NAD sued both Harvard and MIT for lack of closed captioning of their publicly available video and audio content claiming MIT was in violation of Section 504 of the Rehabilitation Act of 1973, and Title III of the ADA. The NAD alleged “[m]uch of MIT’s online content is either not captioned, or is inaccurately or unintelligibly captioned, making it inaccessible for individuals who are deaf or hard of hearing.” The NAD claimed that despite attempts to remediate the situation, MIT had only addressed “a fraction of such content, and even then, inadequately.” In the settlement, MIT agreed to close caption all content posted since January 1, 2019, and all new content moving forward. MIT is also required to provide live captioning for events that are streamed online and must provide captions for any older videos upon request.7
This ruling was a significant win for students with disabilities and proved to be incredibly timely. Mere weeks later as colleges and universities across the country began their transition to entirely online classes, in many cases hindering students with disabilities to learn and leaving those institutions vulnerable for legal action. These students account for approximately 14 percent of enrollment across the country.8 Therefore, it was no surprise that filings skyrocketed due to COVID-19, going from two cases filed in the first six months of the year to 35 cases filed within five weeks over the summer.9
Congress Proposes Online Accessibility Act (OAA)
When the ADA was passed 30 years ago, digital accessibility was not on the forefront of lawmakers’ minds since the internet was only a year old. Although the ADA does include requirements for physical public accommodations, to this day consensus remains unclear how Title III should be applied to the digital space. In 2020, Congress looked to address these issues by introducing the Online Accessibility Act.10 The OAA was intended to require all websites and mobile apps to adhere to WCAG 2.0 which would offer more clarity to businesses on how they are expected to adhere to the ADA. The OAA also aimed to reduce the number of cases filed against small businesses by allowing them 90 days following a written notice to make the changes needed to their content.
However, the proposal was not met with much enthusiasm by the accessibility and disability communities who felt as though they had been entirely left out of the conversation. Many worried the bill lacked the strength needed to make a real difference, and that the accessibility requirements of WCAG 2.0 were outdated and should be replaced by WCAG 2.1 Fortunately for the critics, the bill failed to pass with the 116th Congress coming to an end on January 4th of 2021, leaving the door open for a better attempt of digital accessibility legislation in the future.11
Quick Fix Accessibility Solutions Come Under A Barrage of Litigation and Criticism
Due to very legitimate fears of being sued for inaccessible websites, companies across the country are seeking solutions to help with their problems. The industry of providing accessibility solutions is increasingly important and relevant in our society. Within the past few years there has been an increase of “quick fix” accessibility solutions, including widgets and accessibility overlays, which on the surface seem like potentially viable solutions. These tools use machine learning and artificial intelligence to automatically detect and remediate accessibility issues in the user interface of a website. The tools, however, often offer little to no value beyond the surface level, and in some occasions even make accessibility worse.12
Some companies using these accessibility overlays were lulled into a false sense of security which resulted in litigation in several occasions. The cases Murphy v. Eyebobs, LLC, Blair Douglass v. Masterbuilt Manufacturing, LLC, and Blair Douglass v. Masterbuilt Manufacturing, LLC, were all filed in the past year against companies who used the accessibility tool accessiBe. The tool claims to provide ADA and WCAG 2.1 compliance, yet their customers continue to face litigation.13
Herein lies the danger in overlay tools and widgets, customers do not address accessibility concerns from an organizational level, instead opting for a quick fix that they perceive satisfies their basic compliance needs. Understanding the role digital accessibility plays when purchasing technology products or services is critical in an organization’s risk mitigation strategy. For some time, federal and state agencies and colleges and universities have required third party vendors to attest that their digital products comply with accessibility criteria by filling out a Voluntary Product Accessibility Template, commonly referred to as VPAT, otherwise known as an Accessibility Conformance Report (ACR) once completed. With the rise in legal cases, companies are increasingly turning to these tools and similar measures as a part of larger accessibility and inclusion related policy efforts.14 Companies need to realize it is a “buyer beware” situation so doing their due diligence is very important before buying and deploying these tools.
Conclusion
Disruption in 2020 saw a tremendous push of different industries into an entirely online existence. As we all have spent the past year on Zoom calls or doing all our shopping online, the need for digital accessibility has never been more apparent. COVID-19 pushed accessibility awareness into the zeitgeist, and we as a nation should capitalize on this newfound awareness and begin to address these long overdue issues. 2021 is already starting to look up for inclusion, with the Biden administration touting accessibility as a standard from day one. New disclosure requirements recently introduced by the Security and Exchange Commission are bringing new focus on corporate diversity, equity, and inclusion programs. Hybrid remote workplace and classroom models will no doubt evolve as vaccinations increase. Hopefully these trends will grow leading us to the point where accessibility isn’t an added feature but a mainstay.
About the author
Sean McElaney conducts accessibility research for Microassist, an Austin, Texas-based learning, development, and accessibility consulting firm. He drives content for Microassist’s accessibility news Twitter feed (https://twitter.com/A11yNews) and contributes to the company’s weekly Accessibility in the News newsletter. Sean can be reached at [email protected].
References
[1] Kuykendall, Hiram, Lexis Legal News, Mealey’s Cyber Tech and E-Commerce, “COMMENTARY: The WCAG 2.1 Update: A Brief Look at What’s Changed,” September 21, 2018 https://www.lexislegalnews.com/articles/29878/commentary-the-wcag-2-1-update-a-brief-look-at-what-s-changed. Also available at https://www.microassist.com/digital-accessibility/the-wcag-2-1-update-a-brief-look-at-whats-changed/.
[2] Minh N. Vu, Kristina Launey, Susan Ryan Seyfarth Shaw ADA Title III blog. “Federal ADA Title III Lawsuit Numbers Drop 15% for the First Half of 2020 But a Strong Rebound Is Likely” September 2, 2020 https://www.adatitleiii.com/2020/09/federal-ada-title-iii-lawsuit-numbers-drop-15-for-the-first-half-of-2020-but-a-strong-rebound-is-likely/
[3] Taylor, Jason UsableNet “A Record-Breaking Year For ADA Digital Accessibility Lawsuits” Dec 21, 2020 https://blog.usablenet.com/a-record-breaking-year-for-ada-digital-accessibility-lawsuits
[4] Office of Disability Employment Policy “Diverse Perspectives: People with Disabilities Fulfilling Your Business Goals,” https://www.dol.gov/agencies/odep/publications/fact-sheets/diverse-perspectives-people-with-disabilities-fulfilling-your-business-goals
[5] “Help America Vote Act of 2002,” congress.gov/107/plaws/publ252/PLAW-107publ252.pdf
[6] Abrams, Abigail Time Magazine “Blind Voters Are Suing North Carolina and Texas, Arguing That Mail Ballots Are Discriminatory,” September 24, 2020 https://time.com/5892750/election-2020-litigation-blind-disability-rights/
[7]McElaney, Sean, Lawstreet Media “MIT to Caption Content After Reaching ADA Settlement” February 20, 2020 https://lawstreetmedia.com/tech/mit-to-caption-content-after-reaching-ada-settlement/
[8] National Center for Education Statistics “Students with disabilities” https://nces.ed.gov/fastfacts/display.asp?id=64
[9] AudioEye “How can educators protect their institutions against a new wave of digital accessibility lawsuits?” August 25, 2020 https://www.audioeye.com/post/new-wave-of-digital-accessibility-lawsuits-targeting-education
[10] Library of Congress, “H.R. 8478 – Online Accessibility Act” Sponsors: Rep. Budd, Ted & Rep. Correa, J. Luis. 116th Congress (2019-2020) https://www.congress.gov/bill/116th-congress/house-bill/8478
[11] Smith J.D., Allen, Society for Human Resources Management, “ Bill to Establish Web Accessibility Guidelines Fails to Pass,” January 8, 2021 https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/online-accessibility-act.aspx
[12] Kuykendall, Hiram, Varamini, Soheil, Lexis Legal News, Mealey’s Cyber Tech and E-Commerce, “COMMENTARY: Accessible Overlay Tools: Realities and Myths,” December 9, 2020 https://www.lexislegalnews.com/articles/57014/commentary-accessible-overlay-tools-realities-and-myths Also available at https://www.microassist.com/digital-accessibility/accessible-overlay-tools-realities-and-myths/
[13] Roselli, Adrian “#accessiBe Will Get You Sued,” June 29, 2020 https://adrianroselli.com/2020/06/accessibe-will-get-you-sued.html#Upright
[14] Kuykendall, Hiram, Lexis Legal News, Mealey’s Cyber Tech and E-Commerce, “COMMENTARY: Understanding Accessibility In The Procurement Process,” September 16, 2020 https://www.lexislegalnews.com/articles/54115/commentary-understanding-accessibility-in-the-procurement-process Also available at https://www.microassist.com/digital-accessibility/understanding-digital-accessibility-in-the-procurement-process/
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