Judge Weinstein Does Deep Dive Into Website Accessibility Lawsuits

February 16, 2018 | Shari Claire Lewis | Privacy, Data & Cyber Law

More and more businesses are being sued by visually impaired individuals who claim that they cannot access or use their websites, in violation of Title III of the Americans With Disabilities Act (the ADA), 42 U.S.C. §12181 et seq., which prohibits discrimination on the basis of disability in the activities of “places of public accommodations,” as well as in violation of certain state and local laws. Plaintiffs and their counsel view these lawsuits as having a laudable goal: ensuring that the blind have the same opportunities to engage in our online world as the sighted. Defendants have a more cynical view and see the lawsuits—often filed in multiples of 10 or more at a time targeting multiple businesses in the same industry, by the same named plaintiff and same counsel—as a strategy to secure fast settlement for substantial fees because many defendants choose to settle early rather than incur class action litigation costs.

Recently, Senior U.S. District Judge Jack B. Weinstein of the Eastern District of New York issued a decision approving a settlement of one leading case, which had been heavily litigated prior to settlement. The court’s lengthy and well-reasoned opinion, in Andrews v. Blick Art Materials, No. 17-CV-767 (E.D.N.Y. Dec. 21, 2017), offers an excellent tutorial on the science and public policy behind website accessibility suits. It also may highlight the steps that e-businesses could consider initiating to preempt litigation by improving the accessibility of their websites. Another benefit of doing that, of course, is that they will make their products and services more available and attractive to a population—the visually impaired—that may not have been fully engaged on their websites in the past.

Background

The putative class action complaint in Blick was filed by a blind person, Victor Andrews, against Blick Art Materials, a national vendor of art materials in stores and over the Internet. Andrews asserted that Blick should adjust its website’s code so that visually impaired individuals could more readily purchase art materials on its primary website, https://www.dickblick.com/.

Last year, in Andrews v. Blick Art Materials, No. 17-CV-767 (E.D.N.Y. Aug. 1, 2017), Judge Weinstein ruled in favor of Andrews and held that the ADA, the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law applied to Blick’s online sales.

The parties subsequently asked Judge Weinstein to approve a settlement of the litigation that included a long-term commitment by Blick to make its website accessible over time. Toward that end, the court held a combined fairness hearing and “science day.” The plaintiff’s attorneys demonstrated the software commonly used by visually impaired individuals to access the Internet, known as “screen readers,” which translate the visual Internet into an auditory equivalent and read the content of a webpage to the user. A variety of screen readers apparently are widely available to visually impaired persons, and are commonly provided by state vocational rehabilitation agencies and as a reasonable accommodation at schools.

The plaintiff’s attorneys showed webpages that properly function with this software, as well as Blick’s website, which did not function with screen readers and, therefore, which did not permit the visually impaired to easily navigate it.

At the hearing, the plaintiff identified three interconnected difficulties with Blick’s website:

  1. Product descriptions were not accessible to screen readers;
  2. The website could interact only with a point and click mouse system, which visually impaired people do not use, and not with a keyboard system, which visually impaired users do use; and
  3. The only text picked up by the screen reader was the item quantity, which provided little help to a visually impaired user attempting to purchase a product.

These difficulties, according to the plaintiff, did not allow a visually impaired user to understand the products (or their price) that he or she wanted to purchase from Blick’s website.

The parties’ settlement required that Blick bring its website into compliance with Web Content Accessibility Guidelines (WCAG) 2.0 Level AA, an “industry standard” published in 2008 by the World Wide Web Consortium’s (W3C) Web Accessibility Initiative. The National Federation for the Blind (NFB) uses the WCAG 2.0 Level AA as its own standard for website accessibility of its website, and the federal government has provided some guidance indicating that conformance with WCAG 2.0 Level AA will be required from those doing certain types of business with the federal government. See, e.g., 14 C.F.R. § 382.43; 36 C.F.R. § 1194, App. A, pt. 205.4. It is worth noting, however, that WCAG 2.0 Level AA is only one of several industry self-regulating standards concerning website accessibility and that not only is there no federal standard for accessibility applicable to non-governmental websites but the Department of Justice has announced that issuance of website accessibility guidance was placed on the Office of Management and Budget’s “Inactive List” under the Unified Agenda of Regulatory and Deregulatory Actions. See https://www.reginfo.gov/public/do/eAgendaMain.

Nevertheless, in Blick, the court applied WCAG 2.0 Level AA and then issued its opinion.

WCAG Guidelines

In its decision, the court explained that there are three “levels” of compliance within the WCAG Guidelines: A, AA, and AAA. The court noted that Blick’s consultant had advised against using Level AAA as the standard because it is “not possible to satisfy all Level AAA Success Criteria for some content.” Moreover, Level AAA compliance does not substantially benefit most disabled users, particularly users who are blind.

The court said that it appeared to be the consensus that WCAG 2.0 Level AA should be used by companies when making websites reasonably accessible, adding that the Level AA standard is a “stable, referenceable technical standard” that is technology-neutral in that it applies broadly to different web technologies that currently exist and that also can be implemented with future technologies. Level AA, the court found, addresses the major barriers encountered by the visually impaired.

Implementation

At the hearing on the settlement, Judge Weinstein urged Blick to implement changes to its website piecemeal, if possible, to provide benefit to users as soon as possible. Blick’s consultant indicated to the court that although the parties’ settlement called for a two-year timeline for Blick to implement changes, users of the Blick website would see a “major improvement” in the site’s accessibility “much sooner” than that.

The court acknowledged that Blick already had begun to implement changes to its website. For example, to assist visually impaired users while the website was in transition, Blick had added an accessibility statement and its toll free number was verified as accessible to visually impaired people by screen readers.

Moreover, the court pointed out, both Andrews and Blick had agreed that a two-year timeline was reasonable, and Andrews’ counsel had referred to this time period as the “general market standard.” More importantly, the court assessed the reasonableness of the timeframe in the case before it, and noted that Blick’s consultant had opined that, given the number of issues that it had found on https://www.dickblick.com/, coupled with the “size and complexity of the site, and the number of products on offer there,” two years was “a reasonable and not uncommon amount of time to bring this site into substantial compliance with the WCAG 2.0 AA standard.”

Class and Quasi-Class Action Issues

As part of the settlement, Andrews sought to abandon the class action aspect of his case in favor of individual relief. On the one hand, the court noted, doing so would avoid having to deal with notice and opt-out issues typical of class action settlements, and would avoid the associated costs. On the other hand, settling only Andrews’ claim would leave Blick open to further litigation while it moved to modify its website.

Judge Weinstein resolved the issue by deciding to treat the case as a quasi-class action. According to the court, that was a “middle ground” between a purely individual settlement and resolving the case through the formal strictures of a class action. Judge Weinstein reasoned that because the injunctive relief portion of the settlement—mandating Blick’s compliance with WCAG 2.0 Level AA—would necessarily inure to the benefit of the putative class, because the parties had thoroughly negotiated and supported the terms of the settlement, and because the parties had provided the court the opportunity to review the settlement and suggest changes, it was proper for Andrews to settle the case individually. The court found “no sign of any collusion by the parties that would prejudice possible class members.”

Settlement Approved

The court then decided that the settlement was “fair and reasonable,” and should be approved.

Importantly, the court added, the guidelines that the parties chose to adopt, WCAG 2.0 Level AA, provide “adequate controls to allow visually impaired individuals to access the Internet.” As of now, the court noted, the federal government has no competing standards. The court stated that, “[i]n the absence of competing standards, and through demonstrating that the standards are nearly universally accepted as providing adequate access to the visually impaired, the court can appropriately accept the present guidelines as presently adequate.”

Finally, the court found that the two-year timeline was “reasonable,” especially in light of the ongoing partial improvements Blick had agreed to undertake. It should be noted that the court pointed out that a two-year timeline might not be appropriate as a benchmark timeframe in all cases.

Conclusion

Judge Weinstein focused on several key elements of the Blick settlement that are significant for other companies to keep in mind. First, the court highlighted the screen reader technology relied on by many blind people.

Next, the court decided that WCAG 2.0 Level AA was an appropriate standard for Blick to meet. (The W3C has announced that it will publish an updated guideline, WCAG 2.1, this year. It does not appear that WCAG 2.1 will require substantial changes from WCAG 2.0.)

Third, the court seemed to appreciate Blick’s willingness to settle and that it already had begun the process of upgrading its website, with substantial improvement promised before the end of the two-year deadline. Among other reasons, the court seemed to find this significant because the ADA, unlike other anti-discrimination statutes that only prohibit action, “requires individuals and companies, in some instances, to take affirmative steps to eliminate barriers that inhibit the disabled; in a sense it prohibits inaction.”

The bottom line lesson from Blick for e-businesses is that although this issue is still evolving, it may be beneficial for e-companies to proactively begin the process of bringing websites in compliance with the WCAG 2.0 Level AA standard, which may act as a defense to a suit or a deterrent to being targeted.

Reprinted with permission from the February 16, 2018 issue of the New York Law Journal. © ALM Media Properties, LLC.  Further duplication without permission is prohibited.  All rights reserved.

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