When a major worldwide publication writes about accessible websites, we take notice. That’s exactly what happened when the Economist published Lawsuits over disabled Americans’ access to websites have surged. This article focuses on the large increase in lawsuits related to websites not complying with the ADA. It targets litigants who bring in many lawsuits on behalf of a few plaintiffs.
Ken Nakata from Converge Accessibility and Equal Entry CEO and founder Thomas Logan discuss the key points of the article.
Thomas Logan: So, Ken, you found an article in The Economist that piqued your interest. Tell me about it.
Ken Nakata: Yeah, so about two weeks ago, a reporter from The Economist reached out to me and said that she wanted to talk to me about web accessibility. And it looks like it just dropped today. So, today’s Thursday, August 31st.
What’s Not Considered a Place of Public Accommodation
Thomas: Yeah, and I love that the first paragraph starts with a really clear example of how web accessibility barriers affect people. There’s Mr. Dengler, an American software engineer who’s blind and can’t make an appointment with the Italian consulate because its booking system uses a color-based calendar, which doesn’t show the information to a screen reader.
That makes a lot of sense to me as a barrier when you’re trying to book an appointment with the consulate.
Ken: Yeah, it’s funny that you mention that, Thomas, because I got back to Annie Kravil the reporter who put together this article, to let her know that poor Mr. Dengler probably can’t sue the Italian consulate because they’re not a place of public accommodation under the ADA.
Thomas: Busted.
Ken: Yeah.
Thomas: So, she said in the article he could sue, but you’re saying actually he can’t sue.
Ken: Yeah, yeah.
Thomas: Why is that not a place of public accommodation?
Ken: Because the ADA outlines only 12 categories of places that are public accommodations, and consulates, I guess, could be potentially a service entity, but really are not listed in there. They’re not considered one. Also, you get into all sorts of questions about extraterritoriality when you’re dealing with consulates because technically a consulate isn’t even part of the United States. So that’s actually part of Italy.
Thomas: That’s fascinating. What else does the article say?
Website Lawsuits
Ken: Well, the article goes back and forth about whether web accessibility lawsuits are a good thing or a bad thing because the article questions whether they’re actually making a difference in terms of making more websites accessible. And it doesn’t come to a conclusion about that, but it does say that a lot of people are getting very rich over this.
Thomas: Yeah, I think it misses the point that we’ve discussed before, that the people that could really make the biggest impact on accessibility are these bigger companies that make the platforms that all these smaller companies use. That’s something not mentioned here.
Ken: Now, that’s true. And it’s particularly a problem, I think, with state and local governments.
Thomas: Why do you think state and local governments?
Ken: Well, I think that the private sector has been putting a lot of pressure on content management systems like Shopify and WordPress. And they’ve at least been trying to manage accessibility. With some of these state and local governments, they’re relying on whole cottage industry of web developers that create these third-party applications that provide very specialized functions for municipalities, like paying fees or booking resources, looking at city council meetings that are coming up.
And the platforms tend to not be accessible. And I’ve been looking at these a lot more closely over the last year, and I’m really shocked at the level of inaccessibility in some of them.
Thomas: I wish I could say I was shocked that you’re shocked. That is unfortunate. And I agree with this article’s premise that the lawsuits right now aren’t necessarily having the change.
I guess one of the other points they mention in the article is that it may make some companies throw their hands up and just say, This is how I deal with accessibility. I just do these lawsuits. And they don’t actually think about the important part of actually fixing their site.
Did you think it was saying that? I kind of thought it was saying that.
Ken: Yeah, I think so. I think that one of the themes that come out of the article is this idea that many businesses just think of it as just the cost of doing business to pay off the plaintiff’s attorney with a small settlement, or as small as they can get it, and not change a thing on their websites.
And that’s unfortunate. I think that that’s where organizations like the Department of Justice have really fallen down on the job.
Thomas: I agree. And I think the last point that I thought was interesting, I hadn’t seen this number before, but it says that UsableNet reports that over 400 companies using overlays were hit with lawsuits in the first half of 2023.
The article kind of goes on to denigrate the overlay ecosystem and accessibility, so I didn’t know it had actually been 400 companies using overlays. It really shows you that.
Ken: I suspect actually. Yeah, I suspect that the number’s actually quite a bit larger than that.
When Is a Website Considered Noncompliant?
Thomas: So there really is no substitute for auditing sites, designing fixes, and manually testing them. That’s what the article says and I agree with that.
Ken: Yeah, Kris Rivenberg makes a point. that most of these complaints hinge on technical non-conformance, and I don’t know whether I agree with that completely, but I think that there is this problem that websites face generally about technical non-conformance, which is that sometimes you’ll have these websites that create barriers, but they’re not barriers that block a person with a disability from accessing the site.
They can be sometimes fairly minor issues or sometimes just really vexing issues for people with disabilities. But they don’t block a user from accessing the goods and services that they’re trying to access, yet that leads to a lawsuit. And the reason why, I find that a little bit troubling is because we really don’t have a good way of measuring overall conformance with websites.
Instead, the W3C says, you have to manually test every web page in order to assess whether it’s at A or AA compliance, and nobody’s going to do that for a fairly large site. The moment that you get over a couple of hundred pages, it ends up being an exorbitant cost to manually test every page, and so websites aren’t going to be able to ever really say that they’re fully WCAG A and AA compliant.
Yet, that seems to be the bar that the Department of Justice and a lot of plaintiffs seem to be using.
Thomas: And I guess I’ll end my comments by saying, I think that maybe in some of the complaints, they might be mentioning things that are technical non-conformance, but it’s been my experience, unfortunately, that I can almost always find that end user area of non-conformance.
So even if the complaint doesn’t mention the right item, it’s like most of the time on these sites, you still can find that barrier that does stop someone from being successful. So I guess I would say I’m agreeing more with the general premise. Web accessibility hasn’t improved to a point where it’s good enough for people.
So when you do sue someone, I think most of the time, yes, there are some things that are technically nonconformant, but there are also things that just are blocking people from using the site. That’s a general rule.
Ken: Yeah, I agree with that too.
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Wouldn’t the Italian consulate’s website have to be accessible under the EU Web Accessibility Directive? – https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L2102
You’re correct Jack, but a violation of the EU directive wouldn’t be enforceable under the ADA (which is the source of the avalanche of litigation). The EU web directive is left to the EU member states to enforce. The big accessibility law in Italy is Stanca’s Law, but that appears to be only enforceable by the government.