William D. Goren, a Decatur, Georgia, lawyer and Americans with Disabilities Act expert, hosted the Friday Techshow session, titled “The Wild West of Internet Accessibility Litigation,” with ABA Techshow 2021 planning board member Darla Jackson.
An attorney at the ABA Techshow on Friday guided lawyers through an evolving area of law: ensuring websites are compliant with the Americans with Disabilities Act.
William D. Goren, a Decatur, Georgia, lawyer and ADA expert, hosted the session, titled “The Wild West of Internet Accessibility Litigation,” with ABA Techshow 2021 planning board member Darla Jackson.
Goren, who told attendees he wears hearing aids for hearing loss, discussed the finer points of what it means to make a website ADA compliant, noting there are still unresolved legal questions about whether Title III of the ADA, which prohibits discrimination against individuals with disabilities in places of “public accommodations,” would apply to websites.
Goren said the U.S. Supreme Court’s 2018 decision in South Dakota v. Wayfair indicates how the high court could rule on the issue. The court had to determine whether Wayfair, an online retailer, should collect state taxes even though it does not operate brick-and-mortar stores in the state. The court ruled that for the purposes of state sales taxes, the retailer was the same as a physical business, Goren said.
“That is a strong indication that the United States Supreme Court would head in the direction of case law saying that what is going on [under Title III of the ADA] is going to be the indicator as to whether the internet site is a place of public accommodation,” Goren said.
Web accessibility company UsableNet published a report on ADA digital accessibility lawsuits outlining trends in litigation for 2020. It looked at lawsuits filed under the ADA in federal court or in California state court under the Unruh Civil Rights Act, which protects people with disabilities against discrimination. The report found that ADA-related digital lawsuits had increased by 23% in 2020. That amounted to almost 10 cases every business day, according to the report.
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In digital-related accessibility lawsuits, 10 plaintiffs law firms brought 70% of the cases, the report states.
Goren offered some remedies so attorneys can avoid lawsuits for noncompliance. He suggested lawyers follow the principles enshrined in Web Content Accessibility Guidelines, calling them the “gold standard.”
Designers could also beta-test their sites with people who have disabilities, he said.
“If you have videos that are not captioned, you’re a sitting duck,” Goren said. “If you’re not encoding your pictures so that the blind person using a screen reader can understand what the picture is describing, that is a problem.”
Drop-down boxes on websites are “horrible for accessibility,” the attorney added, and it can be difficult for people with disabilities to navigate CAPTCHA (Completely Automated Public Turing test) technology to verify they are human.
“Trying to get people with voice dictation or even screen readers to figure out how to certify that they’re not a robot can be very complicated,” Goren said.