Website Accessibility and the ADA

Episode Notes

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics

Website Accessibility and the ADA

08/09/2019

 

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Minh Vu: This is why we have this cottage industry of plaintiff lawyers, who are running around and suing everybody and their brother, because inevitably, it is almost always cheaper, always more sensible to just pay the plaintiff’s lawyer and then move on.

 

Eve Hill: I looked at a study that said we each use about 89 websites a month, so that’s about three a day and there are 380 websites created a minute and 98% to 99% of them are inaccessible. So imagine if the three websites you used each day were inaccessible and took you twice as long to use or that you couldn’t use them at all, that would interfere with every bit of your life.

 

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

 

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Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from a sunny Southern California. I have a legal blog named May it Please the Court and have a book out called the ‘The Sled’.

 

Before we introduced today’s topic, we would like to thank our sponsor Clio.

 

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In a highly watched case, Robles v. Domino’s Pizza, LLC, Guillermo Robles, who is blind, filed a lawsuit against Domino’s back in 2016 when he tried and failed on two occasions to order a custom pizza from the company’s website and mobile app. His attorneys argued that Title III of the Americans with Disabilities Act, which entitles those with disabilities to equally partake in and receive benefits from goods and services from business such as restaurants, applies to the online sales platforms of those companies along with brick-and-mortar locations.

 

Well in January of 2019, some three years later, the Ninth Circuit of Appeals is ruled in support of Robles’ argument. Now, Domino’s is petitioning the Supreme Court of the United States to hear the case.

 

And Domino’s is not alone when it comes to issues with the website accessibility from Beyoncé to Bernie Sanders, many sites are also not accessible to individuals living with certain disabilities.

 

So today on Lawyer 2 Lawyer, we will discuss website accessibility litigation, how the ADA impacts these cases, the role that Department of Justice Regulations may play in the matter and whether or not Robles v. Domino’s will reach the High Court.

 

To do that, we’ve got a great show for you today. Our first guest is attorney Eve Hill, one of the nation’s leading disability rights attorneys from the law firm Brown, Goldstein & Levy. Eve’s wide-ranging experience complements the firm’s dedication to high impact disability rights and its advocacy on behalf of individuals with disabilities and their families.

 

Eve is the co-leader of Inclusivity, BGL’s Strategic Consulting Group. Welcome to the show, Eve.

 

Eve Hill: Happy to be here.

 

1. Craig Williams: Great. Thank you. And our next guest is attorney Minh Vu. She is a partner and ADA Title III Team Leader at Seyfarth Shaw LLP. Attorney Vu is recognized as a thought leader on ADA Title III issues and is known for her practical and business friendly approach to litigation as well as compliance under the law.

 

Welcome to the show Minh.

 

Eve Hill: Thank you. Happy to be here.

 

1. Craig Williams: Well Minh, let’s start with you. If you could give us a little bit of background about the litigation in the Robles v. Domino’s case and what started it and what the decisions have been so far?

 

Minh Vu: Sure. So basically Robles filed a lawsuit in the Central District of California basically alleging that he could not use the Domino’s website with his screen reader. Just very briefly people who are blind use assistive technology software that actually reads to them what is on the screen and then that’s how they’re able to interact with the website through the keyboard.

 

So the allegation is that Domino’s website was essentially not — is or was not constructed to be compatible with this assistive software and he couldn’t use it. And then there was also an allegation that the mobile app also suffers from the same deficiency.

 

Although, in the case of the mobile app, he would have been using that through a mobile device and that all mobile devices come with built-in kind of screen reader technology that are obviously used by blind individuals to access mobile apps and mobile sites.

 

(00:04:56)

 

So the lawsuit is interesting because in the Central District of California, Judge Otero actually dismissed the case. This is a very unusual move because frankly he was the only judge that we’re aware of that actually applied the doctrine of primary jurisdiction as well as this due process kind of principle to basically hold that businesses cannot be held liable under the ADA for not having an accessible website or mobile app when they really weren’t on notice of the fact that they needed to make their websites accessible or mobile apps accessible.

 

So the due process argument is really pretty central to the decision below, there was also some discussion about primary jurisdiction which relates to a doctrine where the courts, federal courts will actually kind of step back and stay a case or dismiss a case when they think that an agency has — the expertise of an agency is needed to examine an issue before the courts can get into it.

 

Now, at the time the DOJ, the Justice Department was still supposedly in the process of working on regulations on for public accommodations websites. So that argument was a little more compelling at the time.

 

In any event, Robles lost in District Court. He appealed it to the Ninth Circuit. The Ninth Circuit earlier this year reversed and decided that in fact the ADA does allow for claim based on inaccessible website and mobile app and determined that there were no due process concerns with basically holding Domino’s liable for this, even though there are no regulations out there that actually tell you what is an accessible website.

 

So that’s the explanation of what’s going on.

 

1. Craig Williams: Great, thanks. Eve, what’s the likelihood this is going to go up on cert and if it does what are the issues that Domino’s pushing.

 

Eve Hill: Well, I don’t have much insight into what the Supreme Court will be interested in, but generally the Supreme Court takes cases when there’s a split among the circuit courts on a particular legal issue. And there’s not a split in the circuit courts on the issue that Domino’s would raise.

 

They’re trying to raise an issue that says courts are split on whether online only businesses are covered. But Domino’s is not an online only business you use the website to order a pizza from your particular nearby Domino’s and you pick it up at that Domino’s.

 

So that meets even the most restrictive test of the circuit courts so far, the Ninth Circuit in fact, that requires a nexus between the website and the place of public accommodation in order to cover the website.

 

And so there’s a split on another issue that wouldn’t – that resolving it wouldn’t affect this case. There simply isn’t a split on whether Domino’s website is covered under any circuit. So that would indicate that it would be unusual for the Supreme Court to take it.

 

1. Craig Williams: Has Domino’s made the argument that there’s reasonable accommodations that are available, by just picking up the phone and placing an order for a pizza?

 

Eve Hill: Well, the real argument is a little different from a reasonable accommodation case. I know that’s the term that most people use in the ADA, but for communication accessibility, the ADA standard is effective communication and Domino’s has made the argument in the Trial Court that they would do the same thing you could do through the website over the phone.

 

But this case was decided at the Motion to Dismiss stage. So it doesn’t take into account defenses or other facts. So Domino’s hadn’t proven that that phone line was available or that it would do all the things that were available on the website such as special orders and coupons and those kinds of things.

 

So while they’re perfectly free to make that argument in the factual stages that argument doesn’t help them at the Motion to Dismiss stage.

 

1. Craig Williams: Right, of course. Minh, if for lawyers who are listening to our podcast, what do they need to do to make their law firm websites accessible under the ADA?

 

Minh Vu: Well it’s a challenging question honestly. The problem is that most law firms are not in the business of developing websites. They’re going to hire a vendor to actually create that website for them. So in order to and I guarantee you that none of the existing contracts say anything about accessibility. They might say compliance with all laws, but that’s not really going to help you in this case because –

 

Eve Hill: Mine does.

 

Minh Vu: Well of course because you probably did it recently, but if you have – so I mean the point is like a course in the last several years, if you are now a law firm doing a website and part of your business is handling these cases which ours is obviously and Eve’s too.

 

(00:10:00)

 

Then yes, you’re going to put in that, I mean what I would put in is that this website is going to be developed and will conform with the Web Content Accessibility Guidelines version 2.0 at least or 2.1 Level AA.

 

Okay, and that this set of guidelines that has been put out by a private consortium of experts to kind of address web accessibility. It has a number of requirements and if you meet those requirements, presumably, hopefully all of your website will be accessible to people with all manner of disabilities not just the blind.

 

So that’s what I would put in. I guarantee you, your developers will resist you mightily when you do that.

 

1. Craig Williams: Eve, you have some thoughts about this?

 

Eve Hill: Well actually more and more developers are getting much less resistant to it. So yeah, that’s exactly right, you make sure the contract requires accessibility, you make sure the vendor knows what they’re doing and that they know that the standard for accessibility is WCAG 2.0 or 2.1 Level AA and then you check it and you can require indemnification if it goes wrong, right.

 

Minh Vu: So that’s kind of the wish list. I mean the other thing too is knowing, I mean I think Eve point about making sure that you really hire somebody that knows what they’re doing is really important here, and that’s something that we do for our clients. Our clients ask us, how do we go about doing this and one of the things we do is we help them figure out like who’s the right vendor, ask the questions, really what services are you getting, what are the loopholes, what kind of testing are they going to do.

 

Are they going to do the right testing or are they just trying to sell you kind of a quick fix that’s really not going to address the problem.

 

So it’s a tough — I mean look, I don’t think I mean look we do defense work, but I completely recognize the importance of web accessibility for people with disabilities, because so much is obviously online or even online only sometimes. It’s just we need to get the business community educated and ramped up and the development community agreeing to do these things without kicking and screaming which some of them are essentially.

 

1. Craig Williams: And Eve, some of us put up, some lawyers put up videos on their websites, are they — I think there’s a recent case from 2011 National Association of the Deaf v. Netflix, they’re supposed to be captioned. Does that apply to websites as well?

 

Eve Hill: It does. So again if the video is communicating something that should be effectively communicated for both people with and without disabilities and captioning is the way to make those videos accessible for people with hearing disabilities.

 

It’s pretty easily done, it’s getting easier all the time actually to caption a video and make sure it goes up captioned from the beginning.

 

Minh Vu: Yeah that’s a thing there I mean.

 

1. Craig Williams: And Minh, let me jump in here for a second, my wife is an American Sign Language Interpreter and she has been certified by the California Office of Emergency Services to be an interpreter during those Townhall meetings when they tell you about earthquakes and fires and dam floods and the like.

 

What requirements are there for ASL Interpreters to be on websites? I mean in addition to captioning a video, do you also have to have an American Sign Language Interpreter?

 

Minh Vu: Interesting question. I think that okay, so the Web Content Accessibility Guidelines that we were just talking about, WCAG for short, there’s three levels of accessibility; A, AA and AAA, and I believe AAA requires Sign Language. At least so far, we have not seen any courts or even the Justice Department demanding AAA yet.

 

And so captioning that kind of goes along with what’s going on in the audio is fine at this point and yes, it is much easier to do that now.

 

1. Craig Williams: What’s involved in litigation? I mean how does the ADA affect litigation?

 

Eve Hill: Oh how did it affect litigation? Do you mean for the lawyers and the litigants?

 

1. Craig Williams: Right lawyers, litigants, judges, clerks?

 

Eve Hill: Oh sure.

 

1. Craig Williams: How does the hall operate inside the courthouse?

 

Eve Hill: Well courts have obligations to accommodate and provide effective communication for people with disabilities who are interacting with the courts including lawyers who are blind or deaf, jurors who are blind or deaf, judges and any other participant in the proceeding who’s blind or deaf.

 

So they are capable and are required to provide Sign Language interpretation, accessible documents, effective communication through their websites, forms and so forth.

 

Similarly lawyers are covered under Title III of the ADA and have an effective communication obligation. So if a lawyer is meeting with a client or prospective client or opposing counsel or opposing party, they also need to be prepared to provide accessible electronic documents, Braille documents if those are needed and interpretation and other accommodations such as letting the service animal into the office and so forth.

 

(00:15:00)

 

So those obligations have been around for 29 years now and we’re getting better at them I must say.

 

1. Craig Williams: Well thank you and we have to take a quick interruption here before we move on to our next segment, we’re going to take a break to hear a message from our sponsor. We’ll be right back.

 

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Bob Ambrogi: Imagine what you could do with an extra eight hours per week. That’s how much time legal professionals save with Clio, the world’s leading practice management software. With intuitive time tracking, billing and matter management, Clio streamlines everything you do to run your practice from intake to invoice. Try Clio for free and get a 10% discount for your first six months when you sign up at their website clio.com, that’s clio.com with the Code L2L10.

 

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1. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is disability rights attorney Eve Hill from the law firm of Brown, Goldstein & Levy and attorney Minh Vu, partner and ADA Title III Team Leader at Seyfarth Shaw LLP.

 

Well, we’ve been listening to some of the requirements that Eve and Minh have spelled out about the websites that lawyers and courthouses need to have.

 

Minh, you mentioned that you had some resources available, where do attorneys turn to, to get these resources, to get their websites in the right type of position? I admittedly don’t think I could produce a set of Braille documents if I were required to. How would we go about doing that?

 

Minh Vu: Well, I mean look, well, if you have a case that you need to have, hire counsel for or if you just want to comply, start complying with the law, you need to talk to an attorney who obviously specializes in this area. It’s a very nichey little area. I will say that, very few attorneys are actually operating in this space relatively speaking. And then that attorney would have a list of trusted consultants and firms that they know can deliver the right services.

 

It’s challenging, it’s not like there’s a list of certified — there’s not really a list of certified consultants out there where you can just go and hire somebody and know that they’ve been properly vetted.

 

So unfortunately, it’s very much word-of-mouth and you never quite know for sure whether you have hired the right consultant without kind of the guidance of counsel.

 

Now probably, there also on the plaintiff side I think there are probably organizations like the National Federation of the Blind and others who have used about who the right consultants are as well, and they could probably provide resources.

 

Eve Hill: That’s right. I think both the American Foundation for the Blind, the National Federation of the Blind and the American Council of the Blind have folks, experts whose work they have seen and think is adequate.

 

There are more of these accessibility consultants coming into the field more and more these days, and so you do have to watch out for fly-by-nights. So there are a set of questions you can ask them. First thing do they know what standard to apply?

 

Second, how do they test? You want to hear that they don’t just rely on automated testing that they use actual user testing. You want to talk to some of their other clients, you want to know how their developers or how their testers have been trained. There are a variety of those questions that you can ask just to reassure yourself that they have qualifications and are qualified to do the work.

 

1. Craig Williams: We have these web guidelines that are out there as you mentioned Minh from a private organization, but apparently no DOJ regulations, so is this just a Wild West or how do we know what the standards are?

 

Minh Vu: It’s a tough question. I mean I think there are if you just wanted to make your website accessible, I think most professionals in the space would point you to the Web Content Accessibility Guidelines, the standards that I just mentioned.

 

Now, if we were in litigation, do I think that that would be the standard that the court would use to assess whether website is accessible or not, I don’t actually think that’s the standard, because precisely as you said, there are no regulations that say these are the standards you must meet, okay.

 

Ultimately, standard under Title III of the ADA is can this plaintiff with a disability access all the goods and services they are offering to people who are disabled on the website. So the question is much more — is more practical and functional.

 

Now obviously, if your website comply with the WCAG, then chances are the answer is going to be yes, but the WCAG also covers remember many different disabilities. If you have a blind plaintiff then only the issues that relate to the blind would be at issue in that case, because the plaintiff with only a standing for blind issues.

 

So like I said, it is confusing out there. I think we get a lot of calls from businesses who that just really need guidance and don’t really kind of understand like what’s the standard or what should I be doing, how would we litigate this case, it’s confusing.

 

(00:20:00)

 

1. Craig Williams: It’s understandable to make a complaint about Domino’s because it’s a widely known nationwide business, but what do you do with the mom-and-pop businesses, I mean most of the websites across the country advertise a small business and certainly it would be I’m sure quite burdensome cost wise to have every website be accessible like that, and I’m thinking how are the courts going to react to this. Are they’re going to react to it in the same way that they did with respect to the plaintiffs cases that came on accessibility in small businesses and restaurants?

 

Eve, what’s your thought about that process?

 

Eve Hill: Well, I actually, if you build your website excessively to begin with, it doesn’t really add costs. So that’s the key there is for small businesses to insist that their vendors or the templates that they use are built to be accessible. When you do that, it doesn’t really add cost. The things that are expensive are to go back and remediate things that are inaccessible.

 

So I think it’s very important that the developers of websites and the people who provide the templates for websites make sure that those templates are both accessible and that they prompt people who are putting in content to make sure that they’ve tagged the images so those images can be described, but they’ve labeled the buttons and forms and do those relatively simple things. But those templates do need to do some work and get themselves made accessible so that they don’t put this burden of remediation on small businesses. And that’s where our big problem lies.

 

1. Craig Williams: Well, Minh, there was a case I think just a couple years ago, Juan Carlos Gil v. Winn-Dixie Stores that held the grocery chain websites have to be accessible. Is there a line in terms of the size of a website that has to be — that falls within this? I mean like does the ADA apply to every single website or does it apply to some, and not others?

 

Minh Vu: So, I think technically it would apply to all websites. The difference in what you would want to argue if you’re a small business is that perhaps having an accessible website imposes an undue burden okay on your business, because what the ADA does is it really doesn’t differentiate between big business and small business. It says, okay listen, the standard is you’re going to — you’re required to ensure effective communication with people with disabilities. And that’s the rule, okay.

 

The defenses are you may not have to do that if it imposes an undue burden or it fundamentally alters the goods or services that you’re providing, right. Fundamental alteration is really not an issue for websites.

 

So if you’re truly a tiny business or you’re losing money every year or you just — if you’re in that position you might be able to argue undue burden. The problem, the real practical problem here is, if you get sued your small business, okay, and somebody is asking demanding $5,000 out of you to resolve this case.

 

You’re faced with either paying that $5,000 or litigating the case, okay, and undue burden is one of those issues that will never get resolved early on. It’s basically a factual issue that’s going to have to go all the way to trial. So you are going to spend way, way more than $5,000 to go through to the bitter end and you may or may not win, okay.

 

So this is why we have this cottage industry of plaintiffs’ lawyers who are running around suing everybody and their brother, because inevitably, it is almost always cheaper, always more, more sensible to just pay the plaintiff’s lawyer and then move on, okay, that’s it. Because litigating even if you have a decent defense is going to be at least ten times more expensive if not more.

 

1. Craig Williams: And we’ve had that same problem here in California on Prop 65 litigation and the Attorney General has put his foot down and said that, you know you can pretty much only sue once, but if you settle with one plaintiff’s lawyer, what’s the guarantee you do not going to get another plaintiff’s lawyer two weeks from now?

 

Eve Hill: That’s exactly the problem. I mean.

 

Minh Vu: Yeah.

 

Eve Hill: And I think, I similarly have problems with plaintiff’s lawyers who file and just demand a quick payment without making the website accessible. The point of civil rights law is to stop the civil rights violations not just to pay out small bits of money to make someone go away. And particularly when those settlements are confidential and therefore we can’t tell whether the fix has been, is going to be made or not. That leaves everyone in the dark and I think really does a disservice.

 

1. Craig Williams: Hopefully the Federal system would have some — it has a pretty good vexatious litigant system, and presumably contract those kinds of things and I know our California State Bar has also put its foot down in these types of recurrent litigation by one lawyer will file 50 or 60 lawsuits on behalf of a single plaintiff and get the $5,000 on these little small ADA access cases to restaurants and the like.

 

(00:25:08)

 

All right, well let’s take a look at it from the other perspective, I mean legitimately people have disabilities and can’t use these web sites. For those people Eve, where do they go to get relief? I mean do they come — whose law firm do they seek out, where do they get this kind of help and what are the resources for people that can’t use websites and don’t have this under the ADA?

 

Eve Hill: Yeah. You need to picture. So apparently I looked at a study that said, we each use about 89 websites a month, so that’s about three a day, and there are 380 websites created a minute and 98% to 99% of them are inaccessible. So imagine if the three websites you used each day were inaccessible and took you twice as long to use or that you couldn’t use them at all, that would interfere with every bit of your life.

 

So but what people do and what they should do is look for a lawyer with experience that will show you what settlements they’ve done and will show you also that they’re prepared to take the case to litigation.

 

So I recommend that potential plaintiffs who feel they’ve been discriminated against by an inaccessible website or really any inaccessibility, go to a lawyer who can say here are the cases that I’ve litigated, here’s the summary judgments that I’ve been through, here the motions to dismiss that I’ve been through, here are the results that I’ve gotten.

 

And if the results are, well the websites are still inaccessible, but I got the client $5,000 or I got myself $5,000, that’s not the lawyer you want because you want someone who will actually pursue the case to fix the problem.

 

1. Craig Williams: Great. Thank you. Well, it looks like we just about reached the end of our program so I’d like to take the opportunity for both of our guests to share their final thoughts and their contact information. And Eve, let you finish that up.

 

Eve Hill: Sure. I think with the world going online at an alarming rate, people with disabilities were already having had difficulty getting to and using the physical spaces of stores and the online movement should have been a huge benefit to them, because now you don’t have to face the transportation issues and the physical accessibility issues and websites are just zeros and ones.

 

You can put them in any format, they can be tactile, they can be audible, they can be captioned, they can — I’m sure we’re aiming for scratch-and-sniff one of these days. So those zeros and ones could easily be translated into accessible formats. People with disabilities already bring their own assistive technology to access those accessible formats, they’re just asking that they get met halfway. So that they can have the same benefits that everyone else does from going online and not be left further behind in the digital world.

 

And I can be reached at [email protected] and you can look us up at browngold.com.

 

1. Craig Williams: Great. Thank you, Eve. And Minh, let’s give you the same opportunity, your final thoughts and contact information, please.

 

Minh Vu: Sure. Well, I think businesses are a very difficult place right now given the amount of variation that is going on, and you know they’re facing this on a daily basis. What I’m hoping is that we get congressional action or DOJ actions to actually set the rules for what is inaccessible website, what is an inaccessible mobile app and a sensible transition period so that basically businesses can get their house in order once we know exactly what the rules are, and then I think there needs to be a safe harbor.

 

I mean essentially websites are changing on a daily basis because you get updated all the time. Things break, we all know that. And so companies that are doing the right thing and have proper auditing procedures and ways to monitor those folks, there should be a safe harbor for the occasional problem. If you screw up and fix it, there should be okay if you have the right procedures in place.

 

Small businesses they need different rules, frankly. They probably need more time to get it together, because they are entirely dependent on third parties to get it right. They have zero bargaining power, okay in the terms of getting their websites accessible.

 

So again, having a law or regulations that say here’s how accessible websites need to be built, well then send a message to vendors that they are required to do that as opposed to the current state today where they are not. I mean they’re not liable, they can’t be sued, it’s the businesses that are getting sued.

 

So anyway, our contact information, my contact information is [email protected].

 

(00:29:56)

 

1. Craig Williams: Great. Thank you both very much. We’d like to thank Eve Hill and Minh Vu for being our guests today. It has been an excellent discussion about the Americans with Disabilities Act.

 

Well, if you’d like what you heard today, please rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can leave a comment on today’s show and sign up for our newsletter.

 

I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

 

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