Seyfarth Synopsis: A recently-filed lawsuit contains a lengthy critical report by a digital accessibility consultant of accessibility issues created by an accessibility widget.
Amidst the thousands of lawsuits filed over the past few years alleging business’ websites and mobile apps are not accessible to blind individuals, businesses have scrambled to find ways to make their websites and apps accessible. Often those businesses engage a consultant experienced in digital accessibility to perform an audit of the website or app. The consultant may also provide instruction on how to remediate the underlying code of the website or app to make it – and maintain it so it stays – accessible. This process can be costly and take a considerable amount of time, depending on the size and complexity of the website and the business’ resources. All the while, the business remains at risk of more lawsuits for not providing a website that individuals who are blind or have hearing impairments, for example, can use.
As lawsuits have proliferated, so have consultants and companies offering to make a website accessible through an overlay or “widget”, at much less effort – though not necessarily less cost or less risk – than remediation of the underlying code. Even while respected members of the digital accessibility community voiced reactions ranging from skepticism to flat out repudiation of these products, businesses have used them on their websites, desperately searching for any cost-effective accessibility solution. In a comprehensive article about the legal and technical issues surrounding these products, disability rights attorney Lainey Feingold wrote that “[c]ompanies promise that a website will work for disabled people if the software is installed” and that “using the software will prevent a website from being sued [for not being accessible].” Her article concludes with links to a number of articles written by reputable digital accessibility consultants (who have qualifications sufficient to provide expert witness services to a business facing a website accessibility lawsuit), that provide useful information for any company considering purchasing one of these products, and she provides the following advice: “take the time to understand how disabled people navigate websites. Hire disabled people for roles throughout the design and development process and implement well recognized best practices. Rely on reputable consultants and proven tools. Respect the ADA and avoid quick-fix tools.”
Last year, there were a number of website accessibility suits filed against companies who had attempted to make their websites accessible using these products. One plaintiff’s law firm recently took it up a notch, including in a lawsuit a detailed criticism and lengthy report by a digital accessibility consultant of the accessibility issues created by an accessibility widget.
The digital accessibility expert’s report, which is attached to the complaint, explains that the widget requires a JavaScript snippet be added to each page of the business’ website, which then provides controls that allow the user to modify the website’s appearance, a series of disability “profiles” which provide modifications or enhancements on the website for a user’s specific disability, and in some cases attempts to repair the website’s underlying accessibility issues. The report lays out the consultant’s opinion about the ways in which the widget product not only does not and cannot ensure full and equal access to a website by individuals with disabilities, but also that the product actually adds new accessibility issues to the website. Obviously this is one expert’s opinion, and we’ll watch how this argument plays out in this lawsuit if it proceeds through litigation rather than settlement.
In the meantime, businesses looking to make their websites and mobile apps more accessible should carefully vet all consultants and other accessibility solutions. Outside legal counsel experienced in digital accessibility can often add great value in these efforts and engagements.
