Website accessibility lawsuits brought under the American with Disabilities Act (ADA) are no longer novel or rare, and it looks like they are here to stay. Brought on behalf of blind or visually impaired individuals who allege they cannot sufficiently access or navigate company websites, these lawsuits often target online retailers, food delivery services, and companies who utilize a web-based hiring process. Lawsuits are frequently filed in New York, Florida, California, and Pennsylvania alleging class-based claims. The Department of Justice (“DOJ”) has identified the following website accessibility barriers as an area of focus:
- Poor color contrast;
- Use of color alone to give information;
- Lack of text alternatives (“alt text”) on images;
- No captions on videos;
- Inaccessible online forms; and
- Mouse-only navigation (lack of keyboard navigation).
In addition to the areas specifically highlighted by DOJ guidance, many lawsuits focus on how disabled individuals may use screen reader software to assist in website navigation. Screen readers are software programs that generate speech synthesizers or braille displays in order to allow blind or visually impaired users to read website text. Websites may violate the ADA if they do not allow screen readers to function normally.
This niche litigation has generated a growing industry of consultants ready to assist companies in making their websites accessible. One such company – Alphapointe – stood out to us as unique. Alphapointe is a non-profit for the blind or visually impaired that is headquartered in Kansas City, Missouri with another location in Queens, New York. It is among the nation’s largest employers of people who are blind or visually impaired. Alphapointe’s website accessibility testing is unique in that the testing is conducted by individuals with vision loss. We recommend any compliance or auditing efforts be undertaken in conjunction with legal counsel in an effort to retain attorney-client privilege. That said, it is possible that a company facing litigation over whether its website was sufficiently accessible might ultimately choose to waive privilege and rely upon its good faith efforts to ensure accessibility. In that scenario, it is difficult to imagine a stronger witness than an individual with vision loss to explain why and how the company met its legal obligations to provide an accessible website to disabled individuals.