Digital Inequality and the Myth of Injustice: Equal Access for the Blind May Not Be Delayed

by Eve Hill

From the Editor: Eve Hill is the co-leader of inclusivity strategic consulting and a partner at Brown Goldstein & Levy. Her presentations are always outstanding, and this one, delivered on the afternoon of Wednesday, July 10, was no exception. Here is what she said:

You may have wondered what the title of my speech meant—I hope you said something like “Eve is going to talk about injustice being a myth? That doesn't sound like her!” Well, I’m not going to talk about injustice toward the blind being a myth. As we all know, injustice toward the blind is very, very real in the digital world.

The NFB has been talking about, advocating for, and helping companies and government agencies to make their websites and other technologies accessible for decades. There are now over 1.7 billion websites in the world. Luckily, 85 percent of them are inactive, so there are only about 200 million active ones. There are 547,200 new websites created every twenty-four hours (that’s 380 per minute).  The vast majority of websites are hosted in the US.

More and more, the internet is replacing physical stores—as you know, many retailers and service providers now have no physical presence at all. And workers now work virtually—even the application and assessment process is entirely online. This should be a good thing for blind people. The digital world is made up entirely of zeros and ones that can be presented to the user in any format—audible, visible, tactile. And online access relieves blind people of the hassle of traveling, which is a major barrier for people who can’t drive and have limited access to public transportation. 

According to WebAIM, among the top one million websites’ homepages, 98 percent had accessibility barriers.  WebAIM found an average of almost sixty accessibility errors per homepage. WebAIM concluded that fewer than one percent of homepages were accessible. 

To the NFB and its members, getting those websites to be accessible is a daunting task.  But as President Riccobono has discussed, we’re not daunted!  The NFB challenges inaccessible websites and other digital technologies in the most impactful areas of life—health care, employment, education, voting, retail, and more. The NFB gives the owners of inaccessible websites the opportunity to fix their websites before we litigate. 

With companies that are willing to work with us, the NFB enters into public settlements that require those websites to be made accessible and that require the owners to adopt policies and practices that make sure those websites stay accessible—as with Boeing Employees Credit Union, Monster.com, Expedia, Miami-Dade School District, Greyhound, and more. We monitor their progress to make sure they meet their commitments. 

And when the businesses refuse to make their websites accessible, we litigate the cases.  As a result, the NFB has made the law clear in cases across the country—from Target to Scribd to Los Angeles Community College to EPIC to Ohio’s Secretary of State to the Container Store to state and federal government agencies.

Now we’re going upstream to try to stop the flow of inaccessible websites into the digital world by challenging website developers like GoDaddy and Wix to make the websites they build accessible.  We learn from the parable of the babies in the river—we have to address the hundreds of thousands of inaccessible websites already in the digital river. But we also need to go upstream and stop the developers from throwing them in.

But to some other people, including some blind people and some lawyers, inaccessible internet growth is not a civil rights issue but a business opportunity. About fifty-seven web accessibility lawsuits were filed in 2015. In 2018 it was 2,285—a 177 percent increase. And that number is on track to increase this year.

You’ve probably heard about the so-called “click-by” lawsuits—where a lawyer runs an automated web accessibility test on a bunch of websites and files a bunch of lawsuits against the businesses that fail the automated tests in the name of a blind person. Some lawyers are filing ten or more complaints per week, sometimes in alphabetical order as if they’re picking from the phone book. These lawyers don’t send the owner of the website a demand letter in advance or seek settlement beforehand. Often they do little or no research about the company or its accessibility efforts, so websites have been sued even though the company has already entered into a public settlement with the NFB, and even if the company is already carrying out a comprehensive plan to make its website accessible.

After these lawyers file the complaint, they demand a confidential settlement for a monetary payment (usually $5,000 to $15,000).  So we never know whether they have required the websites to be fixed or whether they ever follow up to see if the websites are fixed. Often the companies sued are small businesses, and paying $5,000 is cheaper than either making their website accessible or hiring a lawyer to litigate the case. Other times, these are big businesses, and they sometimes fight back. And the lawyers who have filed more cases than they can handle and who haven’t done their research are unprepared to make the case. Unfortunately, this often creates bad law that can be used against the NFB and blind people in other cases. This bad law can limit who can sue over an inaccessible website or can limit the number of cases a blind plaintiff can file. Some companies even defend these cases by saying the ADA does not cover websites at all. 

These cases are being used by business associations (just like they use the “drive-by” cases involving wheelchair access) to argue for ADA Notification Acts that would require us to send certified letters to defendants before we can file and then wait six months to see if they’ll make the fixes. If they do, we can’t go forward, even if the fixes aren’t adequate and even if we were harmed by the discrimination. That act will come up again this year, and the drumbeat message of the business associations is turning Congress against people with disabilities and against our rights.

Because of these cases, businesses are arguing that digital equality for blind people is unjust to businesses. That’s the myth of injustice I’m going to talk about.

These cases are creating frustration among judges, who will seek any excuse to kick the cases out of court, making bad law that the NFB then has to step in to fix and hurting every one of us as we try to navigate the digital world.

And these “click-by” lawsuits are being used to tarnish all of us as if we were not enforcing real civil rights—I’ve been called a “drive-by” lawyer in court. The NFB has been accused of fabricating cases just to file lawsuits. None of that is true. We don’t rely on automated accessibility tests alone. We don’t agree to confidential settlements except in unusual circumstances. We back up our complaints with all our resources. We know the law. We monitor settlements to make sure they are fulfilled. We pay attention to the legal precedents we’re making. 

So, what’s the problem with filing lots of lawsuits challenging inaccessible websites?  Nothing. There are lots of inaccessible websites, and they’re violating the civil rights of blind people! They’re excluding blind people from everything from healthcare to voting to work to school! They have to be challenged. And, while sending a demand prior to litigating is a best practice, I don’t even think a website owner who uses an inaccessible website is entitled to a letter ahead of time telling them it’s inaccessible. It’s their website, they bought it, they designed it, they chose not to make it accessible. We have no obligation to explain it to them. Ignorance of the law is no excuse. Getting caught for violating the law is not unjust.

But businesses like Dominos Pizza, Winn-Dixie, the National Restaurant Association, the American Bankers Association, the American Hotel & Lodging Association, the Chamber of Commerce, the International Council of Shopping Centers, the National Association of Convenience Stores, the National Association of Realtors, the National Association of Theater Owners, and the National Retail Federation are arguing that it’s unjust to require them to make their websites accessible so blind people can be their customers. 

They say they need a regulation that says specifically that websites are covered by the ADA. Otherwise they don’t know. Well that’s pretty funny because the Department of Justice has been saying websites of public accommodations and government agencies are covered since 1996. And courts have been saying so too.

Those businesses are also saying they need a regulation that says what the applicable accessibility standard is. Well, that’s funny because during the last federal administration they opposed the DOJ’s efforts to release a regulation. But now they know there’s no possibility of getting such a regulation because of the Executive Order that requires each agency to rescind two regulations for every new one it issues.

So, safe in the knowledge that the federal government isn’t going to issue a regulation, these businesses are arguing that it would violate due process for courts to require their websites to be accessible because they don’t know what it means to be accessible. Dominos is trying to argue that to the Supreme Court. Winn-Dixie made that argument to the Eleventh Circuit Court of Appeals. 

These companies should be ashamed. In the face of clear violations of your civil rights, they have the nerve to argue that we’re violating their rights by demanding to be able to buy their products and services!

So is there any way they don’t understand what accessibility means? WCAG 2.1 Level AA is clearly the major way to achieve accessible websites. The federal government has adopted WCAG as its own accessibility standard under Section 508. Other countries have adopted WCAG as their accessibility standard. There isn’t another standard! 

But, in case there is or in case a company can come up with an innovative way to make its website accessible that isn’t WCAG, or in case WCAG is too much accessibility for the purpose of the particular website, what the ADA specifically and explicitly requires is “equally effective communication.” So as long as everything the website communicates is communicated equally effectively to people with and without disabilities, the business is complying. All they have to know is that they have provided the information in a way that lets PWDs acquire the same information, engage in the same interactions, and enjoy the same services as sighted students and faculty with substantially equivalent ease of use, including privacy and independence.

But there is a problem with filing more lawsuits than you can actually litigate. I say a two-lawyer firm can’t handle ten lawsuits a week and do a competent job or even pretend to do a competent job litigating them. Disability rights lawyers and plaintiffs have a higher obligation to their community and to the disability rights movement than someone who files a slip-and-fall complaint. We have a moral obligation to each other to help the law develop in a way that respects civil rights—that fixes the problems the law was designed to fix. And we can’t do that if we don’t know the law, if we don’t use the law effectively, and if we don’t make sure the fixes happen.

And we have a moral obligation not to become part of the problem. Confidential settlements too often just hide the problem, hide the inaccessibility of the website that continues to exclude blind people, hide the incompetence of the plaintiffs’ lawyer, and hide the bad faith of the website owner. Confidential settlements avoid accountability on all sides. That’s why the NFB publicizes its cases and settlements on its website.

And that accountability doesn’t belong to the individual plaintiff and her lawyer.  Accountability belongs to all of us—the disability community, the community of people who want to decide what businesses they patronize based on their behavior, the American public who deserve to hold each other to our American standards. Five thousand dollars to the individual plaintiff lets those businesses off the hook without accountability to all of us.

So what’s the solution? Ignore inaccessible websites?  No—380 websites per minute. If those websites actually interfere with blind people’s access to those businesses’ services, we should let their owners know we don’t accept that. It’s not the number of lawsuits; it’s the quality of the lawsuits and the ability of the lawyers to handle them. What we have is not too many cases; what we have is not enough qualified and ethical lawyers to handle them.

Should we let small businesses off the hook for website accessibility?  No—those businesses should have us as customers, and making a website accessible is not hard and not expensive. 

Do we need to give businesses more time? It’s been almost thirty years!

What about disbarring or banning “click-by” lawyers and their clients from court if they file too many lawsuits? While that sometimes seems like a solution, that actually hurts all of us.  How many websites do we use each day? One article I saw said eighty-nine per month (about three per day). If half of them are inaccessible, that’s over five hundred inaccessible websites per blind person per year. So how many lawsuits is too many? And that’s not just an inconvenience–that’s discrimination, and it’s exclusion, and it hurts blind people. It hurts your productivity at work. It hurts your ability to educate your children. It hurts your ability to have your vote counted. It hurts your ability to participate in your community. Fighting your way through all those inaccessible websites wastes your time and your energy, taking time away from living your life. Again, it’s not the number of lawsuits that’s a problem—it’s the quality of the lawsuits and the ability of the lawyers to handle them.

I think accountability is the answer. We need to hold ourselves (and our lawyers and the businesses we buy from) accountable. Tell your lawyers you won’t accept a confidential settlement that just pays your lawyer and doesn’t fix the problem. If you have friends who are plaintiffs in cases that don’t fix the problem or that cover up the problem, tell them you don’t respect that. Don’t be afraid to call out lawyers who file so many cases they can’t possibly handle them all and those who enter into confidential settlements for money.

If you are a lawyer, join us in doing accessibility cases. We need more responsible lawyers to challenge barriers that are real barriers, not just technical ones, and to get them fixed.  But you should know the law and the pitfalls so you don’t make bad law. The NFB’s lawyers have encountered most of the pitfalls in this area, and we’re happy to help. Call us. There’s a whole Disability Rights Bar Association that can help. Call us.

Hold businesses and web designers accountable. If a website isn’t accessible, we should call them out. The NFB does that through public settlements, complaints and press releases, and through resolutions that condemn those businesses’ practices. Do enough people—blind people and sighted people—know about the websites that exclude people with disabilities?  Do we boycott businesses whose websites discriminate by taking our money elsewhere when a business’ website is inaccessible? Do we tell our friends? 

Do we call shame on the businesses that argue in court that it’s unjust to hold them accountable for excluding blind people? The National Restaurant Association has about 150 members—I have the list, which includes Walt Disney World, Yum! Brands, Starbucks, Sodexo, Subway, McDonalds, Marriott, Dunkin, Burger King, and 7-Eleven, just to name a few. Are we still patronizing them?

And all of us should resist—hard—any effort to cut back on our ability to enforce our rights just to prevent the bad apples from abusing our rights. Notification acts aren’t the answer. Businesses were notified thirty years ago when the ADA was passed. They were notified again in 1996 when the Department of Justice said websites of public accommodations were covered. They were notified by the many cases and settlements requiring website accessibility.

So—to quote the amazing Beyoncé—I ain’t sorry! I ain’t sorry for demanding accessible websites, mobile apps, self-checkout machines, kiosks, educational technology, employment software, and every other type of technology people use to live the lives they want! I ain’t sorry for filing lawsuits when companies refuse to comply!  I ain’t sorry for shaming businesses who discriminate against blind people!  I ain’t sorry for calling out lawyers who don’t do their job for all blind people. And, most of all, I ain’t sorry for representing the National Federation of the Blind and its members to demand the right to live the lives you want in every aspect of the digital world.