Business says it was threatened with ADA lawsuit for website

Fri, 07/30/2021 - 7:45am

    When the Americans with Disabilities Act became law July 26, 1990, it concerned access to physical property, but an area business was recently threatened with an accessibility lawsuit due to its website.

    The business, which asked not to be named, was first contacted in June by a New York man whose letter said the website was “inaccessible to blind and visually impaired persons,” and asking the business to make changes to comply with certain standards.

    Two weeks later, the business owner received another correspondence from the same person who described himself as legally blind. The correspondence contained a “Pre File Courtesy Notice” of a Maine Human Rights Commission (MHRC) complaint against the business, saying digital images on its website did not have alternative text capability, which prevented him from using software to access the information.

    As a result, he claimed the business had denied him “full and equal enjoyment” of its facilities, which was “willful intentional discrimination” under the ADA and the Maine Human Rights Act. He sought damages and civil fines from the business for intentionally inflicting emotional distress.

    This was followed two weeks later by a proposal offering to settle the matter for $1,500 which would compensate for his distress and his costs. The business could either accept the offer or he would file the complaint with MHRC. Wanting to avoid the expense of a lawsuit, the business negotiated a settlement through its attorney.

    The Boothbay Register questioned MHRC Executive Director Amy Sneirson about this. She commented, “Our process exists to address what someone thinks is unlawful discrimination. But the Maine Human Rights Commission is not intended to serve as a tool for extortion, whether that was or was not the situation.”  “We have received complaints about website accessibility for years,” Sneirson added, advising any business in a similar situation to contact an attorney.

    UsableNet Inc., with more than 20 years in the field of internet accessibility, tracks these lawsuits. In June it reported that “ADA-based cases so far in 2021 plot a path to 4,000 lawsuits...” and 77% of these involve e-commerce websites. The research also found that one in four companies was sued for app inaccessibility after previously being sued for website inaccessibility.

    The Register asked UsableNet’s chief innovation strategist, Jason Taylor, how many Maine companies currently had lawsuits pending. He said it’s hard to identify these, since most are filed in New York and California where the plaintiffs live because these states favor the plaintiffs. According to Taylor, “... any company doing business in those states can be sued in that state.”

    Are there a lot more that settle before landing in court?

    “The vast majority do, 75% to 80% is a good estimate,” Taylor answered. He and his colleagues were familiar with the person who contacted the Boothbay-area business, identifying him in a 2020 webinar as “prolific.”

    Kim Moody, who has been executive director of Disability Rights Maine for 35 years, told the Register, “It’s an unfortunate way to make a living. If someone has the resources to travel but can’t access the website, it’s legitimate. But if he’s just scouring the internet looking for websites and threatening to sue them, it gives people with disabilities a bad name.”

    “By and large people with disabilities aren’t suing or complaining, we’re an amazing, scrappy group,” she said. Moody also said if a business is facing issues of website inaccessibility, it can offer a reasonable alternative such as reading the information to a visually impaired person over the phone.

    Moody encouraged those seeking information about accessibility to call Disability Rights Maine for information.

    Because the Boothbay Region is a resort community, the Register asked Hospitality Maine if it knew of any of its restaurant or lodging members receiving these types of notices.

    “It’s not specific to Maine,” said Greg Dugal, director of government affairs. “There’s definitely been more recently. It’s not always that a small business could get tagged, it’s that it could get tagged more than once.” He is aware of three or four businesses that have received multiple letters. He pointed to mobile phone apps as another accessibility concern.

    For members of the hospitality industry, Dugal offers this advice: “If your website has a booking engine, ask for compliance letters from the booking agent. And for any business, if you link out of your website to other places, make sure about where you are linking.”

    Not a scam, the claim may be legit

    Unlike scammers, who operate under false pretenses, those filing website accessibility complaints may have truly found websites that are problematic.

    Businesses have a frustrating path. Website accessibility is the law, but the U.S. Department of Justice has not yet written a rule that describes exactly what internet accessibility should include. And without a yardstick, courts are relying on standards developed by the World Wide Web Consortium and referred to as Web Content Accessibility Guidelines (WCAG 2.1).

    Dugal expressed frustration, saying it was “unfair” not to allow the business either time to cure the problem or provide a Justice Department rule that would establish government standards for web accessibility.

    His advice to companies? Hire credible web designers that are up to speed on WCAG2.1 and work with people who really understand it. “It’s not just how your website works, but how it’s understandable to a disabled person.”