By Mark Pulliam
June 11, 2017, 4:00 AM
The Americans With Disabilities Act produced tangible benefits. Signed into law by President George H. W. Bush in 1990, the ADA banned employment discrimination against the disabled and eliminated unnecessary physical barriers to commercial and government buildings. But in the quarter-century since it was enacted, the law has also had countless unintended consequences mutating definitions of what constitutes a physical or mental disability, senseless mandates, astronomical compliance costs for business owners and, perhaps most damaging of all, waves of abusive litigation.
Indeed, ADA lawsuits are now as common as sex-discrimination lawsuits, with more than 26,000 new claims filed against employers each year. The latest litigants have their sights on the most innovative segment of our domestic economy: e-commerce.
In this trend, people sue businesses because their websites aren’t sufficiently accessible to the disabled because the websites lack assistive technologies for the blind or hearing-impaired, say. It began in 2000, when Bank of America became the first entity to settle a web-accessibility lawsuit. Safeway and Charles Schwab soon followed suit. In 2008, Target paid $6 million to settle a class-action suit brought by the National Federation of the Blind, and nearly $4 million more to cover the plaintiffs’ attorney fees and other costs. More than 240 businesses across the country have been sued in federal court over website accessibility since the beginning of 2015. Similar litigation has been brought against universities on the grounds that the free online courses they offer aren’t captioned for deaf users, and against ride-sharing services because their smartphone apps lack text-to-speech capability for blind users.
“Applying Title III to websites and to online content in general is highly problematic, because websites are connected to the global economy.
Though the ADA was enacted before websites were ubiquitous, many courts have interpreted the term “public accommodation” in the act’s Title III to encompass Internet companies. But clear rules for applying the ADA to websites have yet to be established. For instance, the courts are divided about whether all commercial websites are subject to the ADA, or just those associated with brick-and-mortar businesses. Under President Obama, the Department of Justice took the broader position, but it didn’t issue any actual regulations providing specific guidance to businesses. Those are now expected in 2018. In the meantime, millions of businesses with websites have the worst of both worlds: mandates without directions.
According to the demands of disabled users, in order for a website to be accessible, it must use fewer pictures, present text in a format that is compatible with text-reading software and employ design that allows for easy navigation. But the features that make a website more accessible for one disabled group are bound to be objectionable to another.
They may also conflict with other needs. Consider bank websites, which often employ timers that will shut down an online session for security reasons after a particular time period is exceeded. Such “timeouts” could present problems for some disabled users, but eliminating them in the interest of accessibility could impair security for all.
In the process of making a website accessible, questions invariably proliferate. Do certain color combinations violate the ADA because they confound the colorblind? Are certain layouts inaccessible if they’re confusing to users with a limited field of vision? Do the accessibility requirements apply only to the websites themselves, or do they also apply to Web content, such as advertising on a third party’s website? Will website hosts be responsible for the compliance of third-party sites? Must archived Web content be revised to comply? What about mobile apps? Do temporary technical bugs in an otherwise compliant website constitute a violation? What physical and mental conditions will require accommodation? So far, Web accessibility lawsuits have concerned the vision- and hearing-impaired, but future cases could be brought on behalf of plaintiffs diagnosed with dyslexia, ADD/ADHD, narcolepsy, cognitive impairments, paralysis and many other conditions.
What’s more, guidelines that make sense for a Fortune 500 company aren’t necessarily appropriate for a small or medium-size business. The cost of having a knowledgeable consultant reconfigure or even audit a website could be prohibitively expensive. Merely reviewing a website’s code and metadata to determine its compatibility with a blind user’s screen-reading software can cost $50,000.
In other words, applying Title III to websites and to online content in general is highly problematic, because websites are connected to the global economy. Making websites accessible to all is a far more complicated endeavor than modifying the premises of a business to accommodate disabled customers or disabled employees.
The litigation approach to enforcement that has developed under the ADA is a proven disaster, and one that should not be inflicted on the burgeoning digital economy. Lawmakers need to recognize that predatory litigation accomplishes nothing but the enrichment of a small number of opportunist lawyers and their clients. At a minimum, before bringing a lawsuit, accessibility claimants should be required to provide notice of alleged violations and give businesses a reasonable opportunity to comply. Advocates for the disabled may oppose such reforms, but responsible legislators must not cower before vocal special-interest groups.
Congress should either exempt websites and their related content from the requirements of the ADA, or enact detailed guidelines for the accommodations required by the law. If Congress won’t act, the Department of Justice or another federal agency should issue reasonable regulations. In the interim, courts should hold in abeyance all lawsuits filed against allegedly noncompliant websites. Exposing businesses to potentially ruinous litigation in the absence of specific rules is an affront to the rule of law.
The ADA has produced endless lawsuits at astronomical cost. We cannot allow our most innovative form of technology, e-commerce, to be sacrificed on this altar of wishful thinking. In our digital age, the law needs to do some accommodating of its own.
Mark Pulliam is a contributing editor at the Library of Law and Liberty. He practiced law in California for 30 years. This piece has been adapted from the Manhattan Institute’s City Journal.