What You Can Learn from Major Accessibility Lawsuits

September 20, 2018 BY SAMANTHA SAULD
Updated: September 24, 2018

There is a growing trend of companies being sued for having inaccessible websites. With the rise of the digital era, organizations are moving away from just having a brick and mortar store, to creating an online platform as well. There are even some companies that solely operate online. Before the internet became mainstream, laws like the Americans with Disabilities Act (ADA) and the Rehabilitation Act were enacted to protect people with disabilities against discrimination. These laws didn’t specify internet accessibility when they were created, so there weren’t any precedents set in place. However, recent accessibility lawsuits can be used as valuable learning opportunities for many organizations. It’s imperative that companies take preventative measures instead of being reactionary, and put a web accessibility strategy in place to accommodate customers who may be deaf/hard of hearing or blind/low vision. Read on to learn more about what your organization can learn from recent accessibility lawsuits, and how to increase accessibility all at the same time.

Streaming Media

NAD v. Netflix

retro television

With more than half of Americans as subscribers, Netflix is one of the biggest providers of streaming media. The online streaming giant started out with mail-ordered DVDs which followed FCC closed captioning rules. As they expanded to a streaming service, the National Association of the Deaf (NAD) sued Netflix for a lack of closed captions on streaming videos, which violated the Americans with Disabilities Act (ADA). According to Title III of the ADA, “places of public accommodations” must be accessible for people with disabilities. Although Netflix doesn’t have a physical storefront, the judge ruled that it’s still considers the website public. It’s more than just streaming movies and TV shows; it’s a shared experience. Deaf and hard of hearing individuals were excluded from enjoying a public activity with their loved ones. Judge Ponsor ruled that:

In a society in which business is increasingly conducted online, excluding businesses that sell services through the internet from the ADA would run afoul of the purpose of the ADA. It would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.

Ultimately, Netflix was ordered to provide closed captions for their streaming web video. It’s important to note that this case was a Massachusetts District Court decision, not a US Supreme Court decision. Although this ruling is not the law of the land, it still provides a precedent for how the ADA interprets digital businesses.

ACB, et al. v. Hulu

Hulu is an online video streaming company, boasting over 20 million subscribers in the United States. With thousands of TV shows and movies, Hulu failed to provide audio description for its blind and low vision users. Audio description is a seperate audio track that narrates the visual information on the screen. The American Council of the Blind, Bay State Council of the Blind, and Disability Rights Advocates filed joint accessibility lawsuits against Hulu for excluding blind and low vision viewers from enjoying online streaming videos. In addition, Hulu’s website wasn’t screen reader accessible. A screen reader is a software program that blind and low vision individuals use to navigate the visual content of a web page. Like Netflix, the ADA prevents discrimination on the basis of a disability in places of public accommodation. The plaintiff did not ask for any financial damages, although they did request that Hulu provide equal access so that all viewers can enjoy streaming videos.

NAD v. Amazon

amazon logo

Amazon is a retail company, selling just about anything you can think of, including a streaming service called Prime Video. The retail giant has a vast collection of online TV shows and movies available online for users anywhere, at anytime. However, not everyone was able to enjoy the online video content. The National Association of the Deaf (NAD) struck a deal with Amazon to ensure that Amazon’s catalog of 190,000+ plus shows and films are captioned. Prime Video was 100% captioned, but Amazon didn’t caption it’s archive of instant video. By December 31, 2016, Amazon captioned 100% of its content and has been consistent with the FCC standards for completeness, accuracy, synchronicity, and placement since.

Trends from Streaming Media Accessibility Lawsuits:

  • Drive to increase users’ experience
  • Audio description needs to be included to be fully accessible
  • Streamed TV shows and movies need captions
  • The ADA also applies to web-only businesses
  • As tech advances, companies must make it inclusive

Higher Education

NAD v. Harvard & MIT

laptop with icon of graduation cap for accessibility lawsuits

On February 5, 2015, the National Association of the Deaf (NAD) filed a federal class action accessibilty lawsuit against both the Massachusetts Institute of Technology (MIT) and Harvard University, citing that the universities violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. MIT and Harvard are founding partners of edX, an online course provider, where 14 million users have access to a wide range of university-level courses. One of the edX goals is to “expand access to education for everyone”. However, edX failed to provide accurate and comprehensive captions for online course materials, leaving some students feeling excluded from these tools. Students complained of captions that were automatically captioned by YouTube’s auto caption, a computer generated caption creator widely known for being inaccurate. Deaf and hard of hearing students weren’t able to properly access educational materials such as recorded lectures, presentations, and podcasts, leaving them feeling excluded from the full learning experience. The ADA does not explicitly address online video accessibility, but other universities can learn from this case in order to comply with stricter captioning standards. This case is instrumental in setting precedent for online media captioning for higher education, and is still ongoing.

Dudley v. Miami University

Aleeha Dudley, a student at Miami University in Ohio, requested speech-to-text software and Braille alternatives to access her course materials. Dudley and the National Federation of the Blind (NFB) filed a joint complaint against the university for failing to adequately accommodate the student’s needs, thus violating Title II of the ADA. In May 2015, the US Department of Justice (DOJ) intervened, stating that the university needed to make their website, digital course materials, videos, textbooks, and learning management systems accessible to all students, including those with sensory disabilities. In January 2016, Miami University agreed to settle the case. A consent decree was created to outline concrete steps that the university would take in order to remedy the situation, and make their digital content accessible for students with disabilities. This is the most comprehensive consent decree available for colleges looking for direction in web accessibility requirements.

DRA v. UC Berkeley

open book with the letter grade AA group of students at the University of California Berkeley were represented by a legal group called the Disability Rights Advocates (DRA). The DRA took legal action against UC Berkeley for a lack of accessible textbooks and unrealistic accommodation timelines. The university violated Title III of the ADA, which requires that universities provide equal access to educational materials. Instead of a traditional litigation, both parties agreed to a structured negotiation, which aims to find a resolution as opposed to going to court. The case was eventually settled in 2013. The university made their library collection of 11 million volumes accessible to students with print disabilities, making study materials more accessible. They also remediated their accommodation timelines by reducing the time it took to convert books into digital alternatives, which reduced the wait time from several weeks to a few days.

NFB v. Penn State

The National Federation of the Blind (NFB) filed a complaint with the US Department of Education against Pennsylvania State University for discriminating against blind students and faculty. The NFB cited that the university failed to make a number of computer- and technology-based services and websites accessible. This covered library and departmental websites, course management systems, and much more. Dr. Marc Maurer, President of the NFB, said:

The number and scope of the accessibility problems at Penn State demonstrate the institution’s blatant—and unlawful—lack of regard for the equal education of its blind students and failure to accommodate its blind faculty members and employees. There is simply no excuse for blind students and faculty to be denied the same access to information and technology as their sighted peers. Sadly, this cavalier attitude toward accessibility is found not only at Penn State, but at many of our nation’s colleges and universities. That is why we have asked the United States Department of Education to act swiftly and decisively to ensure that blind students and faculty members are given the same access and opportunity to succeed as their sighted peers.

Penn State remedied this situation by focusing on WCAG standards for compliance, and even created a structure for compliance management within the university.

Trends from Higher Education Accessibility Lawsuits:

  • Online course materials must be accessible
  • Video needs to be captioned accurately
  • Universities must adequately accommodate students’ needs in timely manner
  • Audio description is required under many of the same laws requiring captioning
  • No university is exempt from accessibility lawsuits, especially when filed by students

Enterprise

Gil v. Winn-Dixie Stores, Inc.

red shopping bag

Winn Dixie is the owner and operator of a regional chain of grocery stores, some of which include pharmacies. In addition to a physical storefront, the company has a website that allows customers to refill prescriptions, find store locations, and access digital coupons. Unfortunately, the website was inaccessible for blind and low vision customers, violating Title III of the ADA. According to the Third, Sixth, and Ninth Circuits, “websites must be accessible if there is a nexus between the website and physical space”. Although the ADA was created long before the rise of the internet, it still covers websites that are available to the public, and must be accessible to people with disabilities.

NFB v. Target

Target is one of the largest department stores and retailers in the United States, with over a thousand locations nationwide. The National Federation of the Blind (NFB) sued the retailer over their website, citing that blind and low vision customers were unable to access most of the information on Target’s website, excluding them from purchasing anything independently. A settlement was reached in 2008, where Target agreed to make the website accessible for blind users. Target now works closely with the NFB to ensure the website is accessible, and is now considered a leader in web accessibility.

EEOC & NAD v. FedEx

FedEx is an American courier delivery service company with a revenue of $65 billion. There were 19 separate charges filed across the country citing discrimination against deaf and hard of hearing workers by FedEx Ground. The company violated the ADA by failing to caption training videos or providing American Sign Language (ASL) interpreters. They also refused to provide modifications to sound-sensitive equipment. The ADA states that employers do not have to provide accommodations to employees if it’s an “undue burden” on the company; this could be financially or otherwise. However, FedEx grosses a very high annual revenue and can’t justify that providing accommodations to its employees is a financial burden.

Andrews v. Blick Art Materials

paint palette with brushes

Victor Andrews was a customer of Blick Art Materials who happened to be blind. He sued the company, citing that the website was “difficult, if not impossible” for blind customers, preventing them from independently navigating the website and purchasing items. The lawsuit claimed that Blick violated the Americans with Disabilities Act (ADA) by having an inaccessible website, thus excluding blind customers. The ADA was passed in 1990, long before the internet became what it is today. Judge Jack Weisenstein denied Blick’s motion to dismiss the case and argued for a broad and contemporary interpretation of the ADA. Judge Weisenstein said:

Today, internet technology enables individuals to participate actively in their community and engage in commerce from the comfort and convenience of their home. It would be a cruel irony to adopt the interpretation of the ADA espoused by Blick, which would render the legislation intended to emancipate the disabled from the bonds of isolation and segregation obsolete when its objective is increasingly within reach.

This is the most comprehensive statement in a corporate suit. It is much safer for corporations to make their websites fully accessible now, instead of risking potential accessibility lawsuits later. As online shopping increasingly becomes more popular, it’s imperative that companies build their websites with accessibility in mind.

Trends from Enterprise Accessibility Lawsuits:

  • The larger the company’s revenue, the more likely they’ll be obligated to provide accommodations
  • Companies should keep accessibility in mind as they grow in size
  • Be proactive – avoid legal fees by making accessibility a priority
  • Websites must be accessible whether there is or isn’t a storefront
  • All videos provided by a company must be captioned and audio described

It’s important that organizations learn from previous accessibility lawsuits. Not only does it prevent a potential lawsuit, it also helps to make the web accessible for all users, including those with disabilities.

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Learn how to avoid accessibility lawsuits by incorporating WCAG standards to your website! download the white paper: wcag 2.0 and 2.1 bringing accessibility into the 21st century

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