United States: Exploding Consumer Web Accessibility Litigation: Remember, Employees Use The Web Too

Seyfarth's ADA Title III Specialty Team has reported extensively on the legal uncertainty surrounding the accessibility of businesses' websites to individuals with disabilities.  Today it reports that businesses' long wait for website accessibility regulatory guidance will continue, as the Department of Justice (DOJ) announced  last week that it will not issue any regulations for public accommodations websites until fiscal year 2018—eight years after it started the rulemaking process with an Advanced Notice of Proposed Rulemaking (ANPRM).

All the while, the DOJ and private plaintiffs continue to pressure businesses, through enforcement actions and lawsuits, to bring websites into conformance with a standard no law requires, citing the ADA's general principle of "equal access".  This puts businesses in an untenable position, as they struggle to prioritize what can often be considerable spend and business disruption to bring a website into conformance with this standard, against the multitude of other regulatory requirements with which the business must comply upon risk of violating established laws.  This external pressure has only increased of late—we have seen plaintiff's lawyers initiate a virtual tsunami of demand letters and lawsuits against all manner of businesses (e.g., retailers, hotels, banks) alleging that their websites are not accessible to claimants with disabilities.  We have seen time and again businesses settle (most recently, as we had predicted, Scribd joined that club)—hence the dearth of case law in this area—quite simply (to the outside world; not so simple to the business's interior decision-making) because it is less expensive to settle than to litigate in an uncertain legal landscape.  These enterprising litigants know this.

Why Should Employers (Who May or May Not Be Subject to Title III) Care?

As an example, digital accessibility in employment has also made news lately: The Partnership on Employment and Accessible Technology (PEAT, funded by the Office of Disability Employment Policy in the U.S. Department of Labor) recently issued a report on its 2015 research findings, "eRecruiting & Accessibility: Is HR Technology Hurting Your Bottom Line?", which sought to answer the question: What if top talent is falling through the cracks due to accessibility issues in eRecruiting, rather than a lack of qualifications?  PEAT researched the top HR technology companies offering these tools, and conducted one-on-one interviews with more than two dozen technology providers, employers, accessible technology consultants, disability advocates, and other experts in the business, disability, and accessibility fields.

From this, it identified the following as the top accessibility issues in this area:

  • (Lack of) Awareness – employers and technology providers tend to underestimate the need for accessible online job applications.
  • Compliance vs. usability mindset – the assumption that a website that complies with Section 508 of the Rehabilitation Act of 1973 (which requires that federal agencies make their electronic and information technology accessible to people with disabilities) meets the needs of all users, without regard to usability.
  • Technology, logistics, and cost – the belief that technical solutions for the most common accessibility issues already exist, but are expensive and difficult to implement.
  • Complexity – the failure of employers to consider accessibility challenges beyond the job application form itself, including processes related to job sourcing, pre-employment testing, and digital interviews; as well as how the application integrates with the overall corporate website (which may also have accessibility issues – see Title III discussion above).
  • Customization – built-in accessibility features are sometimes lost from off-the-shelf accessible products when vendors customize and install a tailor-made application.
  • Inadequate testing – technology providers and consultants suggested to PEAT that employers rarely tested their online job application software with actual users prior to launch.

After gathering this information from employers, IT providers, developers, and advocacy organizations, PEAT surveyed 427 people with varying disabilities (including vision, hearing, physical/motor, and cognitive/intellectual disabilities) about their experiences using eRecruiting tools. It found that 46% rated their last experience applying for a job online as "difficult to impossible."  Of those, 9% were unable to complete the application and 24% required assistance from the employer.  Even after asking the employer for assistance, 58% were still unable to complete the application.  Of the 67% of survey respondents who were asked to complete pre-employment assessments or testing for a job opportunity, 22% were unable to complete testing and 19% required assistance. And, of the 50% of respondents who reported they used social media as part of their job search process; 40% experienced accessibility or usability issues, such as features they could not access at all or that were not user-friendly.

What's the Problem? Top reported issues were:

  • Complex navigation
  • Timeout restrictions
  • Poor screen contrast
  • Confusing, poorly written, and inconsistent instructions
  • Fields that did not state an accepted format (such as date fields) and fields that were mislabeled or not labeled at all
  • Images that conveyed information, but did not have alternative text for individuals using screen readers
  • Applications and questionnaires that:
  • Relied on color, graphics, or text embedded with graphics to convey directions or important information
  • Could not be navigated with keystrokes and required mouse input
  • Had to be signed using a mouse
  • Videos or audio instructions that were not closed captioned
  • Inaccessible "CAPTCHAs" (used to determine whether or not the user is human) with no audio option
  • Trouble uploading the necessary documents
  • No notice about use of pop-up windows, which are blocked by most browsers in many settings, such as libraries and employment centers
  • Lack of contact information for technical support
  • Lack of information on how to request an accommodation

Even if the risk of a consumer or employee lawsuit – or class action – were not enough motivation to develop an enterprise-wide digital accessibility plan, the report notes that these issues affect all applicants for employment, not just people with disabilities: "Think of closed captioning, curb cuts, and voice recognition — technologies initially created for people with disabilities and now used by everyone."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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