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A recent wave of lawsuits — some of them controversial — is bringing the issue to the fore.
Beyoncé got an unwelcome New Year’s present in January: a lawsuit from a blind woman who says her website is inaccessible because it’s presented as a “purely visual interface” that makes it impossible for people with blindness and low vision to use. According to the Americans With Disabilities Act (ADA), these kinds of barriers to access are a violation of civil rights, limiting communication and participation in society.
Instead of abating over time thanks to increased documentation on web accessibility and pressure from the disability community, this problem is only getting worse. The increasing domination of the digital space is also coming with heavier expectations around access and literacy; not being able to use the internet can be a barrier to finding, applying for, and retaining jobs, accessing government benefits, doing schoolwork, looking for love, and shopping for basic essentials.
The ADA and the internet came of age in the 1990s, both with promises of an egalitarian future — open and free access for all.
What went wrong?
“The idea behind the ADA was full inclusion of disabled people in all aspects of public and private life,” explains Lainey Feingold, a civil rights attorney with extensive experience in accessibility issues. Feingold advocates an approach called structured negotiation, which aims to keep people out of court with a collaborative process. But despite legal mandates, inclusion is not yet the reality for many disabled people.
Disabled people are about half as likely to be online overall, are less likely to have high-speed internet, and are more likely to have only one device for accessing the internet. The disability digital divide is stark, and it’s not surprising that in recent years, ADA lawsuits involving web access have been on the rise. Seyfarth Shaw, which tracks such suits, has seen an explosion since 2015 of lawsuits targeting web accessibility. Companies like Target, Toys R Us, Netflix, and TD Ameritrade have faced suits over inaccessibility, with the blind and deaf communities particularly active in this space, though web access can also be an issue for people with developmental, intellectual, and cognitive disabilities, among many others.
Coverage of such suits often positions the plaintiffs as whiners looking for a payout, drawing on rhetoric about “drive-by lawsuits” that has been used to undermine litigation over physical accessibility. Disabled people are demonized in these conversations as monsters trying to hurt mom-and-pop businesses, or mocked for wanting equal access to the internet, despite the fact that the integral nature of the internet makes it increasingly critical to be able to get online.
Imagine, if you will, shopping for something and being unable to click the “buy” button or read the price. Or getting most of the way through a transaction, only to discover that the button for submitting your order is not actually clickable. Or trying to order something that’s only described in the form of text in photos that you can’t see, making it impossible to know anything about the size, shape, color, and other characteristics of the product you want. Or looking at an uncaptioned product video and being unable to hear what the demonstrator is saying.
If that sounds frustrating, welcome to the lives of many disabled people, including me — the modifications I’ve made to my browser to make it accessible sometimes “break” commercial websites, causing snarls just like these. People who rely on screen readers to navigate the web can find it particularly challenging; here’s an example of what it’s like to try to navigate an inaccessible website with a screen reader.
These are all extremely surmountable obstacles. Numerous entities have developed accessibility standards, many of which are commonsense and should be baked right into the design of a website or app from the start. Accessibility improves navigability and usability not just for disabled people but for everyone, and it can be tremendously beneficial for SEO. For example, images should be described with alt text; videos should be captioned; links and forms should be labeled; users should be able to increase or decrease the text size with an on-site tool or browser setting.
Yet despite the fact that the Americans With Disabilities Act has been the law for almost 30 years, many companies don’t even consider accessibility when they’re developing sites and apps, and it shows.
“Accessibility is still a sidebar when it comes to web development,” Rachel Olivero, the director of technology at the National Federation of the Blind, tells me. Many people receive little to no training in the topic, and it’s not integrated into the early stages of design and development. In the app landscape, Olivero says, many of the engines people use to quickly build and distribute apps don’t include accessibility features. Poor accessibility in apps is a bad sign. In 2016, mobile browsing overtook desktop, and 77 percent of Americans own smartphones; the web as we know it is dying, the idea of a website almost quaint.
That leaves disabled people struggling to catch up in online spaces, an experience that can be uniquely frustrating. Accessibility can be a legal requirement for websites that are public accommodations, like retail sites. It is not an optional extra or something that’s nice to have, and the willful decision to keep the web inaccessible can feel like a slap in the face.
Some disabled people opt to reach out to websites they frequent to ask them to address accessibility issues and pursue legal means as a secondary option.
Others choose to go directly to a legal means for enforcing the ADA, and therein lies the crux of the controversy over the conversation about ADA suits, and a world of very shaky ground for disability advocates.
It’s undeniable that large numbers of both physical and online accessibility suits are being filed, often, Feingold says, by “a small handful of attorneys who have seized on a legal practice area and are not traditional civil rights and disability rights lawyers.” Many are taking place in states with so-called “mini ADAs,” which allow people to claim damages as part of an ADA suit — under the federal law, people can only demand a remedy to the accessibility problem and cannot receive a financial settlement beyond attorney fees.
Cynics claim unscrupulous attorneys are using the ADA as a tool to file dozens of suits in a short period of time with a model plaintiff, racking up attorney fees. Especially when it comes to suits involving visual impairments, the uniformity of the complaints seems to suggest that attorneys are “shopping” for sites to target by using tools ironically designed to help developers screen their work for accessibility so they can build better websites, like WebAIM’s WAVE. (WAVE, for what it’s worth, identifies a host of problems with Vox’s website, including empty or redundant links, missing alternate text, and contrast errors.) Olivero comments that such tools provide an imperfect and inadequate picture and cannot replace a paid accessibility consultant.
Some disability advocates agree that there’s a problem with suits filed with ulterior motives, and they fear this practice could be used to undercut very legitimate, and important, work designed to improve access on and offline. Criticizing such suits and pushing for action to resolve these issues can have the unfortunate effect of also tainting suits genuinely rooted in a desire to improve online accessibility, like those the National Federation of the Blind has litigated.
In response to the uptick in ADA suits, conservatives are pushing for laws that would modify the ADA itself, requiring potential plaintiffs to go through a lengthy process and only taking the case to court after these steps have been followed. This would effectively disincentivize proactive accessibility measures, as businesses could remain inaccessible and try to run out the clock.
Notably, most of these questionable suits come from a small number of attorneys who could be managed with bar discipline, leaving the ADA intact while reducing the number of exploitative suits that have less to do with access than they do with profits.
Feingold stresses that when it comes to digital accessibility, lawsuits are a path of last resort, but she also doesn’t want to see the ADA’s protections weakened. “We don’t want anything to happen to the ADA,” she says, noting that the ADA is an incredibly powerful civil rights law.
There’s a lot at stake in conversations about accessibility lawsuits; we cannot overlook the problematic nature of some of these suits, but even as we question their motivations, we need to be mindful that the Americans With Disabilities Act and its accessibility mandates are the law, and full integration into society for the disability community is not just a legal right but a moral one. Whether we’re buying lipstick or submitting job applications, we should all be able to use the same tools.
s.e. smith is a Northern California-based journalist and writer who has appeared in publications like the Guardian, Bitch Magazine, Esquire, Rolling Stone, and Rewire.News, in addition to anthologies including The Feminist Utopia Project and (Don’t) Call Me Crazy.