Disabled turn to courts for equal access to business, government websites By Ron Hurtibise
South Florida Sun Sentinel
July 22, 2018
Business owners who think that building a wheelchair ramp and grab bars in the restroom will ward off South Florida’s accessibility testers and their lawsuits need to fire up their computers, go to their websites and ask: “What’s missing?”
Lawsuits accusing businesses of failing to ensure that their websites are accessible to deaf, blind, or otherwise disabled customers have been on the rise in recent years and show no sign of tapering off, say attorneys who specialize in accessibility litigation.
“If anything, there are more cases, and more plaintiffs filing them,” said Anastasia Protopapadakis, an attorney with the firm GrayRobinson who specializes in defending businesses against claims tied to the Americans With Disabilities Act.
Miami-based disability rights attorney Scott Dinin, who recently won a federal court ruling to force Winn-Dixie to make its website accessible, said the cases are about guaranteeing equal access to everyone and ultimately more revenue for businesses.
“I think disabled people are becoming empowered,” he said. “That’s what the court system is about. For every lawsuit you see, there are 50 other businesses in violation. The lawsuits are designed to spread the message to those who don’t get sued.”
For a website to be accessible, written content must be coded for audio translation by vision-impaired users who depend on screen-reader software. Videos must include descriptions for the deaf and on-screen captions for the blind. All interactive functions must be operable through keyboard commands for people who can’t use a mouse.
Courts have ruled that websites must be accessible if they are connected to physical locations, such as retail stores, hotels and restaurants, or if they are operated by local governments that archive public documents and videos and stream live broadcasts of meetings, the attorneys say.
Since the 1990 enactment of the ADA, which prohibits discrimination based on disability, litigation has focused on workplace accommodations(required under the act’s Title I section), equal access to government services (required by Title II) or access to a business’ goods and services (Title III).
Under Title III of the act, newly constructed businesses were required to incorporate accessibility features into their design, but those built before the act found themselves targets of roaming “testers” who were quick to file suit to force change.
While physical locations are still tested and sued, a recent increase in federal litigation based on ADA violation claims in Florida and elsewhere has been fueled by website-based challenges, according to global law firm Seyfarth Shaw’s disability issues blog, “ADA Title III News & Insights.”
Of 1,488 Florida lawsuits filed in 2017 based on Title III, at least 325 dealt with website complaints, the blog said.
The number is likely higher, the blog said, because Seyfarth Shaw’s count was based a keyword search of cases in the federal court database. Other web-based ADA cases have likely been filed that omit the keywords used in the search, it said.
In the federal district court’s Southern District of Florida, six advocates known for filing web-based ADA suits filed 329 suits in 2017, up from 194 they filed in 2016. The same six plaintiffs filed 167 suits during the first six months of 2018, the federal court system’s database, Pacer, shows.
One of those plaintiffs, Juan Carlos Gil, a Miami resident who is visually impaired and has cerebral palsy, filed a case against Winn-Dixie stores in 2016 that led to a landmark ruling in June 2017. Gil said he wasn’t able to order prescriptions online or download coupons because the chain failed to ensure its websites could be read by his adaptive screen reader software.
District Court Judge Robert Scola sided with Gil and ordered the chain to make its site accessible. In his written order, Scola noted that Winn-Dixie invested $7 million to improve its website in early 2017 but made “no effort” to make the site more accessible to the disabled. A statement on Winn-Dixie’s web site says the company is in the process of incorporating accessibility guidelines. Meanwhile, the grocer is appealing the ruling.
The trial led to the first evidence-based ruling that a “public accommodation” violated the ADA by having an inaccessible website, according to Seyfarth Shaw blogger Minh N. Vu, one of the firm’s partners and leader of the firm’s ADA Title III practice team.
For businesses considering whether to settle or fight similar cases filed against them, “this decision makes the possibility of an adverse verdict much more real,” Vu wrote in her firm’s blog.
Dinin, the plaintiff’s attorney who won the case, expects the ruling to be affirmed by the appellate court. That would create a precedent almost as important as a Supreme Court ruling, he said.
Dinin sued the Broadway play “Hamilton” last year to force it to offer audio descriptive services for the blind. Now at least 19 shows offer live or prerecorded audio descriptive services, according to the website theatreaccess.nyc. He’s also suing Miami’s Ultra Music Festival to force it to offer audio descriptive services.
GrayRobinson’s Protopapadakis said she started seeing increases in the number of web-related ADA cases by South Florida plaintiffs in 2014 and 2015. “They started targeting large retailers and then moved on to mom-and-pops,” she said.
Among 128 ADA cases filed since 2017 by Dennis Haynes, who is vision impaired, are two charging Carrabba’s Italian Grill and supermarket chain Sedano’s with violating the law because the businesses’ websites could not be read by Haynes’ screen reader software.
Meanwhile, Eddie I. Sierra, who has filed at least 28 ADA lawsuits since 2017, targets local governments’ websites under the law’s Title II requirement that governments provide equal services to all. Sierra’s targets have included Miramar, Plantation, Hallandale Beach, Pembroke Pines, Dania Beach, West Palm Beach, Pompano Beach, Tamarac, Boca Raton, Oakland Park, Deerfield Beach and Key West.
Sierra’s suit against Deerfield Beach demands the city caption archived and live-streamed videos. Some suits against cities demand they make old, archived documents accessible by screen reader software, Protopapadakis said.
Until last December, many businesses were delaying upgrading their websites while waiting for the Department of Justice to follow through on plans announced in 2010 to create regulations from a set of web accessibility standards called Web Content Accessibility Guidelines 2.0 (WCAG), created by an international consortium of volunteers.
But the department late in 2017 announced it would not issue new regulations on website accessibility, which forced businesses to continue relying on the international standards voluntarily, along with court rulings, Protopapadakis said.
The department’s decision not to create regulations makes the Winn-Dixie decision even more important, Dinin said. “After Winn-Dixie, no one has an excuse not to be accessible.”
Established consultants say the surge in website-based ADA suits has boosted their business significantly.
Caesar Eghtesadi, who runs an internationally known accessibility design consulting firm Tech for All in Wellington, said the increase in litigation has been a boon for his business.
Three years ago, he oversaw a team of five or six consultants. Today, he oversees 15 consultants who serve clients around the world, including airlines, fast-food chains, universities, banks, cruise lines, hotel chains, and health systems, Eghtesadi said.
While many of the businesses seek help only after being sued, some seek help before, either to avoid being sued or to do the right thing. Eghtesadi said it costs much less to be proactive than to try to retrofit.
“We encourage them, when they’re thinking about their next-generation web product, to think about accessibility,” Eghtesadi said.
Examples of fully accessible websites include those operated by Cleveland Clinic “Their website’s perfect,” Dinin said and the city of Fort Lauderdale.
Dinin said the city has “a great policy and has done a great job of being on the forefront of access.”