Americans with Disabilities
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Domino's, Playboy
and other businesses sued over websites that aren't accessible to
blind "Blind people want access like everybody else
does," said Michael Powell of Warren, Michigan, who has been
visually impaired since birth. "We have screen-reading software, and
it doesn't cost a lot of money to make a website accessible." One problem: Virtual, on-screen "click here"
buttons. If you are blind, you can't see photos or know
where to click to indicate a preference or link to another page and
often the site isn't coded so the electronic reader can help you
navigate. "A lot of developers just don't know how to do
it, so they come up with reasons not to," Powell, 65, said. "I
have tools to use the Internet, but the Internet is becoming more
closed to me."
The thinking is that if a business is required to build a ramp so
someone in a wheelchair can enter the building, the same kind of
virtual accommodation should be made for someone trying to use a
website. For some plaintiffs, the desire is only to fix the problem,
but others are seeking monetary damages, a payout, and many are
ending in confidential settlements. Among the active lawsuits is a case against
Domino's Pizza, which initially was dismissed but got new life
earlier this year after an appeals court ruling reversed the lower
court's decision. Another case: A blind man in New York filed a
lawsuit against Playboy.com in November, arguing he couldn't fully
enjoy the features or buy its rabbit-logo gear because the site
didn't work with his disability software. That suit also is
pending. The lawsuits argue that websites for
restaurants, grocery stores, retailers, universities and art
galleries are in violation of the Americans with Disabilities Act
passed in 1990, well before websites were so common. Moreover, experts say, litigation is
increasing, in part, because the
Justice Department has declined to offer guidelines and
standards for what companies need to do to be considered accessible.
Remedy or shakedown? Still, some companies and defense attorneys
counter that in the absence of accessibility guidelines, they will
be forever accused of not doing enough, and they suggest that
some websites are being targeted for financial settlements, tens
and hundreds of thousands of dollars. "A lot of issues need to get sorted out," said
Michael Pitt, a Michigan lawyer,. "People with mobility, sight and
hearing disabilities are being left out of the full enjoyment of the
digital age." Pitt, who also is president of Public Justice,
a Washington D.C.-based organization, acknowledged some lawsuits may
be efforts by unscrupulous attorneys to shake down businesses and
generate fees, but some suits also are attempts to halt injustice. Last year, plaintiffs filed 2,258 lawsuits
nationally claiming websites were inaccessible, up from 814 in 2017,
according to
Seyfarth Shaw, an international law firm that has been tracking
these cases. In fact, there were so many cases and rulings
that could lead to more litigation, the firm concluded
that 2018 had "been a bad year for most businesses that have chosen
to fight website accessibility cases." About 7.6 million Americans are visually
impaired, less than 3 percent of the population. And blind Internet users say it's not just
business websites that are a problem. Government websites aren't
always accessible, either, leaving people with disabilities without
a way to do things online.
No guidelines, no excuse The case against Domino's Pizza has gone back
and forth since it was filed in 2016. Guillermo Robles, who is blind, claimed in U.S.
District Court in California that the pizza maker violated the
federal disability requirements because he couldn't order a pizza on
his iPhone: The website didn't work with his screen-reader software. "In today's tech-savvy world, blind and
visually-impaired people have the ability to access websites and
mobile applications using keyboards in conjunction with screen
access software that vocalizes the visual information found on a
computer screen or displays the content on a refreshable Braille
display," the lawsuit argued. But, it added, "unless websites and mobile apps
are designed to be read by screen-reading software, blind and
visually impaired persons are unable to fully access websites or
mobile apps, and the information, products, and services contained
thereon." Initially, the case was dismissed, because, the
court said, the Justice Department had not yet offered guidelines
for online accessibility. But in January, a three-judge appeals panel
give the lawsuit new life. The disability law, according to a court
summary of the panel's decision, "mandates that places of public
accommodation, like Domino’s, provide auxiliary aids and services to
make visual materials available to individuals who are blind." So even though customers accessed the website
and app "away from Domino’s physical restaurants" the act still
applies "to the services of a public accommodation, not services in
a place of public accommodation." Domino’s had received fair notice that its
website and app must comply with federal law, the court said, and
imposing liability on Domino's did not violate the company's
Constitutional right to due process. The appeals court concluded that the absence of
federal guidelines were no excuse: "The lack of specific
regulations, not yet promulgated by the Department of Justice, did
not eliminate Domino’s statutory duty." 'We're just being bullied' Joseph Manning Jr., the Newport Beach,
California, plaintiff's attorney in the Domino's case and others
like it, has said in other news interviews that cases like this will
become more relevant as technology advances. The firm has filed similar lawsuits against
other companies, including Macy's, Costco, CVS and Avanti Hotel in
Palm Springs, California. As a result in the case against Avanti, the
10-room boutique hotel's general manager and part-owner, Jim
Rutledge, said he changed the website. It still promotes its
"sparkling pool," "inspiring view of the beautiful San Jacinto
mountains," and the "luxurious comfort of spa-inspired linen." The flowery language is now preceded by a
statement: "The requirements of the Americans with Disabilities Act
leaves us no option" but to deactivate some of our pages, and it
asks customers to "please call direct." Rutledge estimated it would cost about $5,000
to address the website and other complaints, another $8,000 to
$10,000 to settle the lawsuit, and then there's still the
possibility of being sued again. He called the lawsuit – which was filed
in Superior Court of California in San Bernardino County last year –
"legal extortion," adding that "this is just a way for them to make
money." In California, a compliance lawsuit comes with
a minimum of $4,000 in damages. "I empathize with people who have disabilities,
but I don't think it gives them the right to have a free hand in
suing a small business," Rutledge added. "We're just being bullied.
If you stand up to them, they will back off." 'A wave of lawsuits' In some cases, the same plaintiff is filing
multiple lawsuits. More than 75 New York art galleries have been
hit with lawsuits claiming that gallery websites are inaccessible,
according to
Artnet News, a publication that covers the art world. One plaintiff, the Artnet News said, filed
dozens of lawsuits. In another set of cases, a blind Brooklyn, New
York, man sued 50
colleges for not having accessible websites, according to Inside
Higher Ed, an online publication based in Washington, D.C. The institutions include Cornell University,
Vanderbilt University, the California Institute of the Arts, Oberlin
College, Loyola University New Orleans and the Savannah College of
Art and Design. "There have been a lot that have been settled,"
the New York plaintiff's attorney Jeffrey Gottlieb said. He declined
to say how many are pending, and what the settlements included other
than to say they are "confidential, so I can't comment on them." For groups, the barrage of lawsuits from a
single plaintiff is a red flag. Chris Danielsen, the director of public
relations at the National Federation of the Blind based in
Baltimore, said the digital accessibility is not new, and, in some
cases, lawsuits are the only way to force a company to comply. But, he said, if done irresponsibly, lawsuits
could be counterproductive. "There does appear to be a wave of lawsuits
happening right now," said Danielsen, who is blind. "We're all using
the Internet more and more in our daily lives. That goes for blind
people as well as sighted people and there are an increasing number
of things that you can only do online." The fear, he said, is that it leaves people
with disabilities behind. "We can't, as blind people, get frozen out of
the online economy," Danielsen added. "That's the risk we are
facing. We are proactive and aggressive about online accessibility.
We just want to make sure that it's done right."
The above from
https://www.usatoday.com/story/money/business/2019/03/23/lawsuits-dominos-playboy-websites-arent-accessible-to-the-blind/3210001002/
written by
Frank Witsil: 313-222-5022 or
fwitsil@freepress.com.
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