Kathy Ossian on websites and the Americans with Disabilities Act
By Steve Thorpe
Legal News
A visually-impaired woman has filed a lawsuit against Apple, Inc. in federal court in New York, alleging that Apple’s website is not accessible and is therefore in violation of the federal Americans with Disabilities Act. Himelda Mendez claims that she tried to access the website with her screen reader but couldn’t fully use the functions and features of the site. Kathy Ossian is the principal of Ossian Law PC in Ferndale, which provides legal expertise in all areas involving Information Technology and the Internet. She concentrates on the legal risks involved with IT activities like cloud computing, social media, phishing and mobile devices. Ossian is a frequent speaker and author on IT law trends and topics.
Thorpe: Give us a quick overview of this case.
Ossian: Websites have been considered “public accommodations” subject to the requirements of the Americans with Disabilities Act (ADA). Ms. Mendez alleges that Apple’s website violates the ADA in several respects, including: (a) lack of alternative text (“alt-text”) or a text equivalent coded to each image so that screen-reading software can speak the alt-text where a sighted user sees the image; (b) empty links that contain no text causing the function of the link to not be presented to a user; and (c) redundant links where adjacent links go to the same URL address. The time for Apple to answer or otherwise respond to the complaint has not yet expired.
Thorpe: Since June 1, Himelda Mendez has filed 41 lawsuits in U.S. District Court for the Southern District of New York, including some against relatively small businesses. What might be the legal strategy there?
Ossian: Presumably, each of the 41 lawsuits correlates to websites with which Ms. Mendez experienced as a user. Also keep in mind that the Apple lawsuit and some, if not all, of the other lawsuits are styled as class actions, so I suspect that Ms. Mendez was willing to be a named class plaintiff.
Thorpe: One of the earlier suits of this sort was against Target in 2006. How did that play out?
Ossian: The 2006 decision in National Federation of the Blind v. Target was the first to hold that a website was a “public accommodation” for purposes of the ADA. Of course, there is no question that Target’s brick and mortar stores must meet the requirements of the ADA. In this case, a federal court in California found that Target’s website was “so tightly integrated with [Target’s] physical store” that the services offered online must be similarly accessible.
Thorpe: Some contend that litigation is the only method that Congress provided to enforce the law. Agree?
Ossian: In addition to filing a federal lawsuit action alleging ADA violations as Ms. Mendez has done, an ADA complaint may also be fined with the U.S. Department of Justice. Filing a complaint with the DOJ can be done online, by mail or by fax. The online complaint form is available at https://www.ada.gov/complaint/ The DOJ’s previous position was that websites are public accommodations subject to ADA requirements, however, in December of 2017, the DOJ withdrew its prior website regulations and states that it “will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”
Thorpe: Another similar suit, this time against Netflix, concerned a hearing disability. How did that differ from other suits?
Ossian: ADA lawsuits filed against Netflix have resulted in a split between federal circuits. In 2011, the National Association of the Deaf filed a class action lawsuit against Netflix, alleging that some content available on Netflix did not include closed captions. The big difference with this case is that Netflix is strictly an online service without a physical presence. Netflix filed a motion to dismiss the case on the basis that their online service, in and of itself, doesn’t constitute a public accommodation. A federal court in Massachusetts denied the motion and, in 2012, Netflix settled the case, agreeing via a consent decree to caption all of its content within two years. A subsequent suit filed in a California federal court by an individual plaintiff making similar allegations was dismissed by the court. On appeal, the 9th Circuit Court of Appeals affirmed, holding that, as Netflix is “not connected to any actual, physical place,” the online service provider is not subject to the ADA.
Thorpe: What measures might a company take to make their website compliant? Why do some companies, including giants like Apple, not take those measures?
Ossian: Measures toward compliance would include making sure that all images on the site contain alt-text, that buttons and form fields are each labeled, that frames are named and identified and that any videos contain captions and that those captions are accurate. Many organizations are either not aware of the ADA’s applicability or they may outsource the building and maintenance of their websites to outside companies that may not have this knowledge.
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