Believe it or not, blind people can use the internet. Blind people can do almost anything that sighted people can including operate a computer. For sighted people, it is difficult to imagine what life would be like without the use of sight. It is even more difficult to imagine how someone could use a computer without the use of their vision. Seriously, try it for yourself: close your eyes and try to login to your computer. Try to get on the internet and log in to Facebook. Better yet, without opening your eyes, try to navigate to the website of your favorite local restaurant and order yourself some food.
You will find that navigating your computer without sight is very nearly impossible unless you are highly proficient at using assistive technology such as screen readers, braille keyboards, or some other assistive hardware or software that allows you to interact with your device. Many blind people become incredibly proficient at navigating the internet using assistive technology. Although it is heartwarming to see people who are living with disabilities overcome the odds and live happy and fulfilling lives, this article is not about the trials and tribulations of the visually impaired community -- This article is about emerging technologies, ethical business practices, & a new phenomenon known as “surf by lawsuits.”
History & Legislation
It is the summer of 1990, an extraordinary moment in human history. The Simpsons airs on FOX for the very first time. The Hubble Telescope is placed into the Earth's orbit by the Space Shuttle Discovery allowing us to see the universe like never before in the history of our species. Vanilla Ice releases one of the most culturally impactful songs of our time (Ice, Ice, Baby). The Americans with Disabilities Act is passed into law by George Bush Sr. & 101st United States Congress.
The Americans with Disabilities Act, or ADA, is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. In Practice, the ADA ensures that individuals with disabilities have access to the same goods and services, and the same opportunities as everyone else.
If you’re a business owner, this means that you are legally required to ensure that your place of business is fully accessible to the disabled. All places of business must come equipped with wheelchair access ramps, grab bars in the restrooms, toilet seats at a specific height, doors at a specific width, and many other accommodations that ensure people with disabilities can effectively access goods and services. These standards of accessibility are extensively covered in Title III of the ADA which pertains to places of public accommodation. Though these physical standards and building practices are reasonably straight forward, defining precisely what constitutes a “place of public accommodation” has proven to be somewhat more difficult.
As a business owner, implementing these standards and building practices can be costly and very time consuming; however, becoming accessible to disabled persons is objectively the right thing to do, and there are some great incentives for going through the trouble. The first incentive is that you gain access to a much larger customer base which now includes people living with disabilities; a group which makes up roughly 18% of the US population and approximately one billion people worldwide. And the second incentive is that your business won’t be sued for discriminating against an entire class of people costing you tens of thousands of dollars in court fees and potentially bankrupting you.
ADA Title III permits private individuals to sue non-compliant businesses for alleged ADA infractions, regardless of how minor or technical the alleged infraction may be; and rightly so -- Why shouldn’t a person be able to advocate for themselves and for others to have equal access to places of public accommodation, regardless of their disabilities? To argue against this would be blatant discrimination. Right?
Interestingly, Title III plaintiffs are not entitled to monetary damages; however, the statute does contain a provision pertaining to attorneys’ fees for successful plaintiffs. That is to say, if a disabled individual sues a business under the ADA, they cannot receive any money from the defendant – but their lawyer will. Using this attorneys’ fees provision as leverage, it has become commonplace to see attorneys who specialize in Title III litigation partnering with repeat or “serial plaintiffs” and filling dozens (and in some cases hundreds) of Title III lawsuits against small and medium businesses. It is from this practice that the term “drive-by-lawsuit” is derived.
Here's how this works: Attorneys who have familiarized themselves with public accommodation accessibility standards drive by businesses in their area, find any obvious Title III infractions, and then file a lawsuit against the business on behalf of a disabled person who may or may not have ever even been to that particular place of business.
In Florida, one man who supposedly suffers from a spine condition, with the help of his attorney, sent out over 1,200 lawsuits over just a few years. In a WPTV News Expose’ filmed in February of 2017
, this particular plaintiff and his attorney were confronted and asked to comment on the sheer number of lawsuits they had filed and whether this practice could be considered ethical. No comment was given. There has also been speculation into the legitimacy of this plaintiff’s spine condition given his mobility and lifestyle, but that is neither here nor there.
What is so frustrating for defendants involved in these drive-by lawsuits is the fact that simple cosmetic fixes, such as moving a light switch or a mirror just a few inches, which would typically cost less than $100, can end up costing a business tens of thousands of dollars in attorney’s fees, court fees, or out of court settlement. It is also important to note that a sizable percentage of these lawsuits are settled out of court for undisclosed amounts of money. Many business owners settle out of court to ensure that their business is not associated with discriminatory practices. Additionally, just because you have been sued already does not mean you cannot be sued again! Many businesses have been hit with lawsuit after lawsuit for the same accessibility issues.
In situations like this, it can be difficult to tell who the real victims are -- is it the person with disabilities desiring equal access to goods and services, or is it the mom and pop store owners who are dragged through the American legal system for a misplaced door handle? Some instances of accessibility litigation more closely resemble a legal form of extortion than the actual pursuit of equality.
Flash forward to the early 2000s: arguably the most significant period of the modern era. Jetpacks become available commercially for the first time; Apple disrupts the tech industry by launching the iPad; DreamWorks releases Shrek 4: Shrek Forever After – a cinematic experience the likes of which humankind has never known, nor will we ever experience again. Around this same time, an influx of ADA Title III lawsuits flooded into the American court system; but there was something different about these lawsuits…
These lawsuits, primarily filed by visually impaired plaintiffs and their attorneys, alleged that defendants’ websites were inaccessible to them. It turned out that blind people wanted to use the internet too! Never saw that coming.
Even though visually impaired people have access to assistive technologies which allow them to use computers, if a website, mobile application, or computer program is not coded correctly (using accessible web-design practices), screen readers and other assistive technologies will not be compatible with it.
These Title III lawsuits, or ‘web accessibility lawsuits,’ as they have come to be known, alleged that because a business’s website is directly correlated with the goods and services offered by the business, the website must be considered by the courts to be a place of public accommodation just like the physical store location and therefore be subject to compliance with the American’s with Disabilities Act. Soon after this assertion was made by Title III plaintiff’s, it became apparent that the courts agreed and the web accessibility lawsuits were permitted to proceed to trial.
It wasn’t long after one of these web accessibility lawsuits was permitted to proceed to trial that serial plaintiffs and their drive-by attorney’s caught wind of this new type of ADA lawsuit. It seemed there was a new, hip way to extort businesses, and all from the comfort of your own home! This is where the term “Surf-by-lawsuit” is derived. Attorneys using website code scanning software can surf from website to website sniffing out any accessibility errors they can uncover, and then file class action ADA lawsuits against the owners of these websites on behalf of their plaintiffs.
The courts’ response to these new web accessibility lawsuits made it clear that business owners, government entities, and educational institutions would have to quickly take steps to ensure that their websites were accessible just like their physical places of public accommodation.
As early as 2000, web accessibility lawsuits have been rolling through the federal court system; and they continue to pick up speed. Some of the more notable cases include:
AOL, Bank of America, Radio Shack, Rite Aid, the State of Arkansas, Amazon.com, the State of Texas, Target, Sutter Health, Apple, CVS, Atlanta Georgia, Expedia, Staples, The US Department of Education, Hilton, Jet Blue, Major League Baseball, the American Cancer Society, CBS Broadcasting, Disney, Ticketmaster, Charles Schwab, The country of Canada, Netflix, Square, Bank of America again, Safeway, UC Berkley, Weight Watchers, Redbox, eBay, the US Department of education again, Ace Hardware, Bank of America a third time, The US Department of education a third time, Carnival Cruise Line, eHarmony, Harvard, the National Basketball Association, Reebok, Footlocker, Toys R Us, Patagonia, Dicks Sporting Goods, Winn Dixie, and hundreds of other state and local governments, universities and colleges, and businesses of all sizes.
Oh, and Beyoncé… Beyoncé was sued for allegedly discriminating against the disabled because her website was inaccessible…. Shame on you Beyoncé.
Though these cases involve extremely well-known defendants, surf by lawsuits affect smaller, mom and pop businesses as well. This group of notable cases makes up only a tiny percentage of the web accessibility lawsuits filed in federal courts each year.
Standards and Regulation
So, what are the rules regarding accessibility on the web? Obviously, the piece of legislation that is most applicable to this issue is the Americans with Disabilities Act, Specifically Title III related to places of public accommodation, a term which now includes websites as well as physical, brick & mortar locations. Additionally, many states have their own laws related to discrimination such as California’s Unruh Civil Rights Act. Many of the web accessibility lawsuits filed in the state of California have referenced the Unruh Civil Rights Act in addition to the ADA.
Regarding standard coding practices for accessibility on the web, the Department of Justice has yet to issue any guidelines related to what constitutes acceptable web development practices. However, in nearly every web accessibility case to date, US courts have referred to WCAG as the standard benchmark for accessible web design.
WCAG stands for Web Content Accessibility Guidelines. These guidelines were developed by the Web Accessibility Initiative of the World Wide Web Consortium, or W3C. This article will not go into too much detail on the specifics of these guidelines, but it’s important to understand that WCAG has been internationally accepted as the standard for web accessibility.
More information on these guidelines can be found here.
What’s to come
Fortunately, for the would-be-targets of these drive-by & surf-by lawsuits, the mom and pop businesses who have not yet fallen victim to this kind of predatory litigation, The US House of Representatives has attempted to address the issue through recent legislation. On February 15, 2018, the ADA Education Reform Act was passed into law.
This reform essentially grants business owners “time to fix” what is broken following an ADA Title III lawsuit. Because of this new amendment to the ADA, defendants are now allotted enough time to remedy any ADA Title III infractions before a case proceeds to trial and they are forced to pay Attorney’s fees to plaintiffs. Bravo to the American Legislative Branch. All that said, since the ADA Education Reform Act was passed, we have continued to see a year over year increase in the number of web accessibility lawsuits filed in federal court.
Blind people use the internet. If a website is coded incorrectly, impaired individuals may not be able to access important features of the website, even with assistive technology. If your business has a website which is coded incorrectly, you are liable to be sued under Title III of the Americans with Disabilities Act for discrimination against a class of people; a lawsuit which could cost your business tens of thousands of dollars in attorney’s fees.
Even after paying a substantial amount of money in attorney’s fees, or in an out of court settlement, your business is still responsible for remediating your website’s code and maintaining continuous accessibility or you can, and likely will be sued again.
Attorneys specializing in Title III ADA law have been and will continue, taking advantage of this law through Drive by & Surf by lawsuits.
Though new legislation has been passed that gives businesses a fighting chance to overcome these predatory lawsuits, experts predict that the number of surf-by lawsuits will increase significantly in 2019, as it has four the past 8 years.
The good and the bad
A lot of people don’t know what to make of this situation. Obviously, in an ideal world, everybody would have equal access to goods and services regardless of physical or cognitive disabilities; no one is arguing on the other side of that debate. This issue arises when serial plaintiffs and attorneys create a business model out of exploiting the American Justice system and extorting small business owners for substantial amounts of money all in the name of equality.
However, this issue is made even more complex by the fact that some serial plaintiffs, if not most of them, believe that by litigating these businesses they are helping to protect and advance the civil rights of disabled individuals around the nation, and perhaps they are. In cases like these, it is nearly impossible to know for sure which party has the moral high ground.
So, what is the American business owner to do?
First, contact your attorney. Whether or not you have been sued already for accessibility incompliance, get rolling with your legal counsel on creating a plan to protect your business
Second, talk to your web developer. Very few web developers create accessibility compliant websites. Find out where you stand concerning web accessibility. Keep in mind that many web developers may fight you on becoming Accessibility compliant. This could be because accessibility remediation and maintenance can be costly and time-consuming. Don’t let your web developer brush you off because they are too lazy to do the work, or because they don’t fully understand the legal ramifications of not complying with the ADA. YOUR WEBSITE HAS TO BE COMPLIANT!
Third, reach out to a web accessibility expert. Many web accessibility firms have extensive knowledge on accessibility law as it pertains to the web, on web content accessibility guidelines, and on how to navigate the journey towards web accessibility going forward.
Fourth, continue educating yourself as much as possible. As new lawsuits move forward to trial, new legal precedents are set, and the conversation is continuously evolving. Stay ahead of web accessibility trends by keeping up-to-date on the latest legal and technical news, and ensuring you are knowledgeable about where your business stands concerning accessibility.