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This Is Why We Can’t Have Nice Laws

wooden judge's gavel with out-of-focus law books in background.
photo by Matthew Henry via Burst

Trial lawyers working on contingency fees are nothing if not creative. Unfortunately for the rest of us, the Americans With Disabilities Act offers them an evergreen outlet for those creative urges.

The latest fad in the ADA shakedown racket is website lawsuits. Lawyers are recruiting plaintiffs to sue a wide range of businesses and institutions not for maintaining inaccessible buildings or facilities, but for supposedly offering noncompliant websites.

A woman in my hometown of Fort Lauderdale, Florida, reportedly has reached settlements with at least 20 hotels and motels in the state. These suits center on the properties’ failure to explain their level of accessibility on their websites, in alleged violation of the ADA. The plaintiff and her lawyers do not contend that the hotels fail to offer suitable accessible accommodation, but rather that they failed to make their offerings clear in their online booking systems. The lack of accessible rooms would be a violation of the law; the lack of sufficient information about such rooms on a hotel website is a much grayer area.

More often, though, the purported problem in website accessibility suits is that the website itself is not accessible to users with hearing or vision problems. According to the National Retail Federation, more than 1,000 website accessibility lawsuits were filed in federal court in the first six months of 2018 alone. Retailers are not the only targets, either; one New York City resident is suing 50 colleges, alleging that their websites are not accessible to visually impaired users.

Question: When Congress enacted the ADA in 1990, did it anticipate that someone might someday require newspaper advertisements to also provide copy in Braille? Answer: Of course not. In the same vein, Congress could not have been specific about website accessibility three years before the introduction of the first graphical internet browser let everyday people begin to explore the World Wide Web.

Today, internet users with disabilities rely on a variety of tools and resources to navigate websites, including screen readers, screen magnifiers and voice recognition software. Common accessibility principles in web design include providing alternative text for images, transcripts for audio content and captions for video content. But the rules of website accessibility are far from standardized, and they certainly do not appear in the text of a law written nearly 30 years ago or in the implementing regulations. That means that businesses and institutions operating in good faith may easily overlook a potential issue or provide a solution that works for some users but not others.

Further, the ADA prohibits discrimination in “any place of public accommodation.” It is not at all clear whether and to what extent the law applies to nonphysical locations like websites. Some courts have required that websites have some ties to a physical location before they are subject to the ADA at all, while others have permitted cases against standalone websites. The Justice Department attempted to issue guidance about website accessibility requirements but later withdrew the proposed rules, in part because the ADA does not clearly grant the DOJ the authority to make them. For now, businesses and other potential places of public accommodation are flying blind where web accessibility is concerned – which makes them tempting targets for overreaching litigators.

The ADA has done a lot of good for a lot of people, and America is better off overall because we have it. But that doesn’t mean the law is not subject to abuse. And abuse is exactly what most of these website accessibility suites represent.

As Anastasia Protopapadakis, an ADA defense attorney with the Miami firm Gray-Robinson, told the Miami-Herald, if the true purpose behind these lawsuits was to expand accessibility, they would be failing in their aim. “There’s a question of whether it’s really the plaintiff encountering the barrier,” Protopapadakis said. She also observed that in the case of suits against Florida hotels, many smaller, independent lodging establishments have taken their websites down altogether rather than risk a lawsuit. True disability advocates are equally uneasy about the effect nuisance suits will have on actual accessibility. A representative of the National Federation of the Blind told Insider Higher Ed that the organization does not advocate jumping straight to litigation when an institution is not accessible; instead, it views lawsuits as a last resort when other approaches have failed. But that position, while sensible, creates no payday for lawyers.

The ADA itself allows plaintiffs to receive only injunctive relief and attorneys’ fees, but some states – including Florida – allow private individuals to win monetary awards from noncompliant businesses. This gives private attorneys ample motivation to proactively seek out potential plaintiffs, rather than the other way around. It also means that people who sue under the ADA in good faith, out of a sincere desire for access, are undermined by the small group of law firms who are responsible for a huge proportion of ADA suits. This problem isn’t new, but website accessibility suits represent a new manifestation of an ongoing problem.

A legislative fix would be easy to do technically, but impossible to accomplish politically as long as Democrats (who are the key enablers of the trial bar) control either chamber of Congress. The issue never even made it onto the radar in the first two years of Donald Trump’s term when Democrats lacked such control, possibly because the GOP had many higher priorities, but likely also because even the Democratic minority in the Senate would have been able to block substantial change.

In a way, this development is the fulfillment of prophecy by the National Federation of Independent Businesses that the ADA would be “a disaster for small businesses.” It wasn’t at the time, and hasn’t been in the decades since, but that does not mean the law cannot become a significant burden now.

This is what happens when good laws are abused. The proclivities of the trial bar are one big reason we can’t have nice laws.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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3 Responses to "This Is Why We Can’t Have Nice Laws"

  • Richard Hunt
    March 5, 2019 - 6:48 pm

    It is not true that no legislative action has been taken. The House passed an ADA reform bill intended to limit lawsuits but it did not have unanimous Republican support in the House and was never taken up by the Senate. The truth is that very few politicians of any party want to appear to be anti-disability. The website litigation problem would have been at lease partially solved by regulations that were to become effective in 2017, but for ideological reasons the Trump Department of Justice cancelled the rulemaking over the protests of the business community. This was an example of “no regulation” run amok because the regulation was more to protect business than harm it. In the fall a number of business groups lobbied Congress and the DOJ to put the rules in place but DOJ has stuck by its position that all regulation is evil and, presumably, that the business community doesn’t really know what is good for it.

    The truth is we need ADA reform that both limits private lawsuits and promotes accessibility. Doing this effectively is possible, but it would take real work and both parties would have to abandon their hard line ideologies. That isn’t likely to happen any time soon.

  • Chris Danielsen
    March 6, 2019 - 12:00 pm

    A couple of things are important to note here. First, the ADA has no enforcement mechanism other than private lawsuits, so limiting lawsuits might prevent some abuse but would also likely bar legitimate complaints. Second, although there are no DOJ regulations, accessibility isn’t exactly a mystery. Meeting success criteria AA of the Web Content Accessibility Guidelines will usually make a website accessible to blind users. Finally, we all use the Internet more and more, and transactions that used to be conducted in person are increasingly conducted online. In fact, most businesses aggressively drive customers to their websites so that they can minimize the cost of call centers and physical locations. In this environment, claiming that the ADA doesn’t apply to businesses and other entities that are otherwise covered simply because they now provide access to their products and services online defeats the law’s purpose. Laws that don’t mention specific technologies are applied to them all the time; see, for example, Fourth Amendment jurisprudence on telephone wire taps and cell phone searches. The bottom line is that people with disabilities can’t really participate in work, education, or business transactions in the twenty-first century without equal access to websites. We will once again retreat into the shadows, in contravention of the ADA’s goal to bring us out of them, if we don’t have equal access. We will become the true victims of a digital divide.

  • Kris Rivenburgh
    March 8, 2019 - 11:31 pm

    This is an excellent article that highlights an unavoidable truth:

    The ADA, in terms of website compliance, is being abused by plaintiffs’ law firms for a quick windfall at the expense of businesses, companies, institutions, and organizations.

    The primary objective of most demand letters and lawsuits is money, not accessibility. This is why we see a single disabled individual named as the plaintiff in dozens of lawsuits such as Juan Carlos Gil from Gil vs. Winn-Dixie. Gil has filed roughly 100 ADA website compliance lawsuits.

    There is no law that mandates websites meet certain accessibility requirements. There should be. There should have been one a decade ago. But there’s not.

    For this reason, intense advocacy pressure/criticism should be aimed at the Department of Justice and Congress for their failure; The reason U.S. websites are inaccessible today is a DIRECT consequence of the DOJ and Congress failing.

    The DOJ was on the cusp of establishing web accessibility regulations – going so far as to release an ANPRM – and failed to get the job done.

    From court decisions, those of us following accessibility know that websites need to be accessible. Defendants can make due process arguments but they’re most likely going to lose, not because they’re wrong (again, there is no law), but because the legal momentum is in requiring accessibility.

    Given the prevailing landscape of required website accessibility, there are obviously legitimate website compliance claims that have been filed. Claims where persons with disabilities have contacted companies, made them aware of inaccessible components of their websites, and have been flatly ignored – many times on multiple occasions.

    In these instances, a demand letter/lawsuit is a reasonable response.

    However, the stereotypical surf-by lawsuits are a complete disservice to legitimate claims.

    Website accessibility needs to be the emphasis. Not the transfer of wealth to plaintiffs’ law firms.

    Currently, by and large, it’s the opposite: plaintiffs’ law firms are collecting settlements with the collateral benefit of website accessibility.

    Given that most entities are still unaware of website accessibility, if the true goal is access for persons with disabilities, providing notice first (potentially with a fee for time and effort) and then following with legal action/outlined damages if no material improvement is made would be an appropriate sequence.

    As indicated in Larry’s article, this sensible approach appears to be the one the National Federation of the Blind uses.

    Looking forward to what should constitute new website accessibility standards, I think WCAG 2.0 should be used as a reference along with input from persons with various disabilities.

    It’s worth a reminder that WCAG is not the law, nor do I think it should be.

    As Assistant Attorney General Stephen E. Boyd wrote in his letter to Congress, “absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”

    In other words, WCAG isn’t the law, accessibility is.

    WCAG 2.0 AA comprises many important and necessary success criteria that should absolutely become requirements under new law. However, it (and WCAG 2.1) also contains a few success criteria that are more aspirational than practical.

    For example, under WCAG 2.0 AA, live presentations (such as streams) must contain real-time closed captions (this is not just subtitles).

    Very few businesses have the resources and capacity to provide closed captioning for live streams. As AI improves, live CC will become possible but, as of now, adherence to this success criterion would effectively shut down webinars across the US.

    For this reason, WCAG should not be wholly accepted. It is the best standard currently available and thus is used as a guiding reference by courts but it needs to be evaluated and put under scrutiny.

    Again, when website accessibility standards are being created, I think agreed upon WCAG 2.0 AA success criteria should create the foundation of website accessibility. Once that layer is formed, rigorous input from persons with varying disabilities should be sought to truly make website accessibility law robust and practical.

    Websites need to be made accessible so everyone can enjoy access. There are nine months left in 2019. Hypothetically, I think January 1, 2020 is an accelerated yet reachable and fair target date for web accessibility.

    However, enriching plaintiffs’ law firms DOES NOT need to be a part of this movement. It can be if needed to get the willfully non-compliant to get moving, but plaintiffs’ law firm fees SHOULD NOT become aligned with website accessibility.

    Give entities a chance to make their websites accessible. If they aren’t proactive in making their websites accessible (at least in regards to what is actually hindering use/enjoyment), then legal action should commence.

    It’s important to remember that action now is being taken against entities that have no idea that they’ve done anything to invoke legal action.

    Illustration: A local chain restaurant has their website created by a web designer. Everything looks perfect, but the web designer doesn’t code in alt text for meaningful images. In January of 2019, the local chain receives a demand letter requesting $10,000 for discriminating against persons with disabilities. Of course, the local chain is completely caught off guard and had no idea they could violate the ADA in this way (because no law exists, just recent interpretation).

    This is not what advocacy looks like.

    If you’re truly an advocate, you’ll provide notice first and give a reasonable amount of time for remediation.

    If you’re truly an advocate, if you ask for a fee, it will only be a small one (e.g. $250 for mailing the notice letter).

    If you’re truly an advocate, you’ll only seek significant damages/file a lawsuit against entities who disregard accessibility after they’ve been made aware of inaccessible elements.