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Dorian Aldrege
The internet offers a unique challenge: how do we ensure that all of our digital products, services, and communications are accessible to people with disabilities? What are companies required to do to accommodate such users?
Federal disability laws still await comprehensive updates to keep pace with the digital world. The Americans with Disabilities Act (ADA) was set to receive input from the DOJ in 2018. However, such plans were dismissed in 2017 by the Trump administration and the DOJ indicated it would not give official guidance regarding website accessibility under the ADA.
Aside from direct amendments to the laws, or lack thereof (in the case of the ADA), disability case law has played a major role in setting precedent for how the ADA applies to the internet. One landmark case comes the mind:
NAD v. Netflix.
In 2015, more than half of all Americans watched Netflix. In 2020, there were 203.67 million Netflix subscribers worldwide. Because of its widespread use and popularity, the video streaming service must be made accessible to deaf and hard of hearing viewers.
The outcome of the lawsuit sent a strong message to video creators and distributors that the ADA may apply to your online content. This has far-reaching implications for other entertainment companies that stream video online, like Hulu or HBO Max. It can also affect how the ADA is interpreted in cases of educational videos, such as the closed captioning lawsuit against Harvard and MIT.
In the years since this case, Congress passed the 21st Century Communications and Video Accessibility Act (CVAA), which applies FCC closed captioning rules to any online video content that previously aired on American television with captions. This erased any doubt that TV shows streamed online require captions.
DISCLAIMER: This blog post is written for educational and general information purposes only, and does not constitute specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
As the world increasingly becomes digital in everyday life, whether due to improvements in technology or the coronavirus pandemic, the concept of digital inclusion and web accessibility is a growing concern for many individuals and businesses. About 15% of the world population and more than 20% of that of the American population currently live with a form of disability. Thankfully, like in America, many countries have now ratified their non-discrimination and digital accessibility laws to include the Web Content Accessibility Guidelines (WCAG) as a standard to follow in making websites and applications accessible to people with disabilities. Most international web accessibility laws now demand websites and applications are perceivable, operable, understandable, and robust enough to work for people with disabilities.
The Americans with Disabilities Act (ADA) and Section 508 have continuously referenced the WCAG 2.0 AA standard over the years. Non-conformance with WCAG standards is similar to not providing equal access to disabled users of your website which then triggered web accessibility lawsuits against such businesses. It is, unfortunately, true that the threat of a lawsuit has been a major reason many organizations make the effort to make their websites accessible. Many disabled users and advocates have championed this course over the years leading to high-profile web accessibility lawsuits. Here are the largest prominent cases we hope businesses (large and small) can learn from.
The lawsuit alleged Target of violating the California Unruh Civil Rights Act (California Civil Code Section 51 et. seq.), California Disabled Persons Act (California Civil Code Section 54 et. seq.), and The Americans with Disabilities Act (ADA)- accessibility laws that require businesses and any space to be accessible to everyone, including people with disabilities.
One of the high-profile cases in web accessibility happened In 2015 when the National Association of the Deaf (NAD) filed a federal class-action lawsuit against the Massachusetts Institute of Technology (MIT) and Harvard University before the United States District Court for the District of Massachusetts. The association alleged Harvard and MIT of violating U.S. accessibility laws (the Americans with Disabilities Act and Section 508) by not providing appropriately accurate and comprehensive captioning for online course materials (video and audio files). This simply denies people who are deaf and hard of hearing equal access to free online programming.
In one of the first ADA website compliance lawsuits that established that accessibility should include online properties just as physical businesses, the National Association for the Deaf (NAD) filed a lawsuit against the online television and movie streaming giant Netflix in Massachusetts in 2012. This was to exempt customers with hearing impairments or deafness from their online services.
Winn-Dixie had to make its website compliant with WCAG 2.0 AA standards and set aside $250,000. Courts also require Winn-Dixie to ensure annual training for their employees on website accessibility, require third-party content on the site to be accessible, and adopt a web accessibility policy.
This 2014 case represents the first where the Department of Justice (DOJ) intervened in accessibility regarding mobile apps and web pages. H&R Block entered into a consent decree with the DOJ and the plaintiffs which demanded it pay $100,000 in damages and make the website and apps accessible by following WCAG 2.0 AA before the 2015 tax season. H&R Block was also made to appoint a web accessibility coordinator and offer web accessibility training to employees.
Electronic Arts (EA) Inc. is one of the recent targets of accessibility lawsuits. In May 2022, Rafael Cordero, a blind user, sued EA for failing to design its website to be fully usable and accessible to blind and visually-impaired users.
He wants DraftKing to make changes to its compliance policies including retaining a qualified accessibility consultant and implementing all the recommendations. He also seeks payment of an undisclosed amount in attorney fees and nominal damages.
In 2005, the National Federation of the Blind (NFB), a non-profit representing blind Americans, notified Target that its website (Target.com) was inaccessible to blind and visually impaired customers.
Target initially argued that its website is not covered by the ADA, saying that only its physical stores were. It later changed its stance and settled with the NFB in 2008, paying $6 million in class damages.
Maria asked the judge to place a permanent injunction on Nike to update its websites to meet accessibility standards. She also sought compensation in damages, court costs, attorney fees, and pre-and post-judgment interest.
This case involved a class action lawsuit filed by several blind individuals who sued CVS, a pharmacy chain, for violating the ADA because its website was not accessible to screen reader users. The lawsuit claimed that CVS failed to provide alt text for images, proper headings, keyboard navigation, and other features that would make its website accessible. The case was settled in 2009, with CVS agreeing to pay $250,000 to a settlement fund for affected customers and make its website accessible.
In 2017, Lucia Marett, a blind user, sued the fast-food chain Five Guys for having an inaccessible website that prevented her from ordering food online. The lawsuit alleged that Five Guys violated the ADA and the New York Human Rights Law by failing to provide alt text for images, keyboard navigation, and other features that would make it accessible to screen readers. The case was settled out of court with Five Guys agreeing to make its website compliant with WCAG 2.0 AA standards and pay $10,000 in damages and attorney fees.
This case involved a class action lawsuit filed by several blind individuals who sued DoorDash, a food delivery service, for violating the ADA because its website and app were not accessible to screen reader users. The lawsuit claimed that DoorDash failed to provide alt text for images, proper headings, keyboard navigation, and other features that would make its website and app accessible. The case is still pending as of 2023.
Accessi can help you avoid getting into a legal battle through its automated accessibility audit and comprehensive reports. Test your website and generate a PDF report with our free accessibility checker now to begin your journey to having a WCAG 2.1-compliant website.
The second patent, issued on Tuesday, "covers a method for subscription-based online rental that allows subscribers to keep the DVDs they rent for as long as they wish without incurring any late fees, to obtain new DVDs without incurring additional charges and to prioritize and reprioritize their own personal dynamic queue--of DVDs to be rented," the lawsuit said.
The lawsuit says No. 1 U.S. rental chain Blockbuster, which launched its online rental service in 2004, was aware that Netflix had obtained a patent for its business method and was seeking a second, but willfully and deliberately violated the existing patent.
Netflix, which is represented by the San Francisco law firm of Keker & Van Nest, is demanding a jury trial and asks that Blockbuster Online be enjoined from using Netflix's business method and be forced to pay damages and court costs.
"Netflix created a very unique service, from the dynamic queue, to the idea of letting subscribers keep movies as long as they want with no late fees, to the idea of allowing customers to get new DVDs as soon as they return old ones," Swasey said.
But a debt load of more than $1 billion and weakness in its primary business of store-based movie rentals forced the Dallas-based company to cut back its marketing investments this year in Blockbuster Online, which has 1 million subscribers, compared with 4.2 million for Netflix.
"It's my opinion that it won't be," Pachter said. "Blockbuster detrimentally relied on their silence as consent. If in fact (Netflix) feels so damaged they should have sought injunctive relief before Blockbuster rolled out its service."
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