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How a typical web accessibility lawsuit happens

It’s hardly news that accessible website litigation is continuing in record numbers—and the Supreme Court’s decision to punt on clarification by denying certiorari in the Domino’s Pizza case certainly didn’t help. While I was fearing any decision from this Court to resolve the split in the Circuits over web accessibility, the continued confusion only fuels the plaintiff’s bar while leaving no incentive for the business community to improve their websites. But that’s not the purpose of this blog post. Instead, it’s to complain about a pattern that the defense bar has only started to pick up on. Here’s the way that a typical web accessibility lawsuit happens.

First, a plaintiff (almost always blind) will allege that a website is inaccessible. They allege that they visited the site and tried to find basic information or order a product but they were unable to complete this task because of basic of missing alt attributes or improperly labelled forms with the website. News of this complaint usually arrives either in the form of a demand letter from the plaintiff’s attorney (more common) or a complaint filed in Federal court (less common). A little initial jostling occurs (e.g. the plaintiff may have sued the wrong person or the company isn’t a public accommodation under the ADA) but eventually most cases either settle quickly (more common) or go to litigation (less common). Then a funny thing happens—in most cases, the attorneys seem to become stunned by the technical aspects of the Web Content Accessibility Guidelines (WCAG) and lose sight of the fact that the complaint involved only the allegations of a blind plaintiff. As a consequence, while liability still hinges on the plaintiff’s experience, discovery and remedies focus on all of WCAG.

What do I mean by that?

First, let’s take discovery. In litigation, a lot of time is spent developing evidence. This can mean taking depositions, requesting documents, and asking lots of questions. It also means developing (and countering) expert witness reports. As web consultants, we are used to creating detailed reports that identify how a website conforms or doesn’t conform to WCAG 2.0 or 2.1 A/AA. But, in litigation, I find myself having to remind my law firm customers that they don’t want us to create such a broad report because it goes far beyond the scope of the plaintiff’s complaint. In fact, creating too broad of an expert witness report (e.g. one that addresses disabilities different from the allegations in the plaintiff’s complaint) can potentially get an expert witnesses report stricken—and require hiring a new expert witness. While the client (and the client’s developers) may really want a full WCAG report, it isn’t a great idea to ask for one until the dust has settled on the litigation if you’re the expert witness-- otherwise, that full report will likely be discovered in litigation. Attorneys enjoy something called “work product privilege” that protects certain kinds of information from being divulged in litigation. Reports from non-testifying experts that are prepared on the attorney’s request fall under this privilege. But, once that expert is designated as a testifying expert witness, the privilege drops—and other reports prepared by that witness become discoverable. So savvy defense attorneys request us to create reports based on the plaintiff’s disability alone (and largely limited to the allegations in the complaint)—and, if their client’s site is really inaccessible, designate us as non-testifying experts and settle the case.

Two cases that are interesting to compare and contrast here are Diaz v. Lobel’s of New York, 2019 U.S. Dist. LEXIS 127126, 2019 WL 3429774 (EDNY 2019) and Gomez v. General Nutrition Corp., 323 F. Supp. 3d 1368 (S.D. Fla. 2018) in which two courts considered whether expert witness testimony from the same expert witness (McAffrey) should be allowed into evidence. His testimony was rejected in the Diaz case and accepted in the Gomez case. In Diaz, the expert was rejected because he failed to show that his testing techniques were established in the industry. But his testimony was accepted in the Gomez case because he focused on the practical impact of his testing on users with similar disabilities as the plaintiff. To me, Gomez probably strikes the right balance. Often, there are times when a blind plaintiff is completely blocked at a page—and it is impossible (or nearly impossible) to get past that block.

Now, let’s turn to remedies. More often than not, courts and attorneys turn to WCAG as their yardstick for determining website accessibility. This makes some sense; in the absence of clear guidance from the Justice Department, WCAG 2.0 or 2.1 are the de facto web accessibility guidelines. Gomez v. General Nutrition Corp., 323 F. Supp. 3d 1368, 1379 n. 3 (S.D. Fla. 2018)(“[w]hile declining to rule on this explicitly at this point, the Court finds highly persuasive the number of cases adopting WCAG 2.0 Success Level AA as the appropriate standard to measure accessibility”); Andrews v. Blick Art Materials, LLC, 286 F. Supp. 3d 365, 370 (E.D.N.Y. 2017) (concluding that "the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA … are hereby determined by the court to be an appropriate standard to judge whether Defendant is in compliance with any accessibility requirements of the ADA"); Hindel v. Husted, 2017 U.S. Dist. LEXIS 13820, 2017 WL 432839, at *7 (S.D. Ohio 2017) (ordering Defendant the Ohio Secretary of State to "conform with the Web Content Accessibility Guidelines 2.0 Level A and AA Success Criteria"); Del-Orden v. Outback Steakhouse of Florida, LLC, Case No. 16-cv-2319 (S.D.N.Y. 2016) (requiring Outback to bring the websites of "its parents, subsidiaries, and related entities ... into substantial conformance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA").

There are 38 success criteria that must be met it meet WCAG 2.0 A/AA but several of the harder ones have no effect on users who are blind. Yet, time and again, defense counsel and courts agree that all of WCAG needs to be followed instead of looking at the specific disability of the plaintiff. For instance, the following success criteria have little or no impact on users who are blind.

1.2.2 Captions (Prerecorded)
1.2.4 Captions (Live)
1.4.3 Contrast Minimum
1.4.4 Resize text
2.3.1 Three Flashes or Below Threshold
2.4.7 Focus Visible

Captions primarily benefit users who are deaf or who have limited hearing. Ensuring adequate contrast and resizing text benefits users who have limited vision. Three flashes or below helps prevent photosensitive seizures. Lastly, focus visible primarily helps keyboard-only users with vision (e.g. people with limited dexterity).

Other WCAG requirements also have a greater impact on users who use a particular assistive technology. For instance, say a blind user is a proficient braille user and relies on a braille output display instead of audio output. In this case, audio controls (success criteria 1.4.2) would be handy but failing to provide them would not block access to the page. Also, the pronunciation by a screen reader wouldn’t matter so the page would not have to identify the language of the page (success criteria 3.1.1) or the language of specific words or passages that differ from the surrounding content (success criteria 3.1.2).

As someone who has advocated on behalf of people with disabilities for almost 30 years, I’m all in favor of greater accessibility. But I also get frustrated when it’s agreed to by lazy lawyering because that suggests that it won’t really lead to any improvements in accessibility because it will be undertaken in a half-hearted way. Better results come from knowing exactly what you’re doing and why you’re doing it.

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