Directly or indirectly, the internet has affected almost every life in America. Principally, access to the world-wide web has profoundly changed the way American consumers access goods and services. Yet, business providers of those goods and services have been slow to recognize and appreciate that not all consumers can or do access the web as quickly and efficiently as others.
Recently, a multi-national tax preparation company was sued by two visually-impaired customers who sought to use the company’s digital tax service to prepare and file their income taxes online. The case was filed in the United States District Court in Massachusetts. The customers sued under the Americans with Disabilities Act (“ADA”), and Article 114 of the Massachusetts Constitution, as enforced through the Massachusetts Equal Rights Act (“MERA”). Shortly after initiating the suit, the United States Government intervened in the action to enforce Title III of the ADA. Generally, it was alleged that the company discriminated against these customers because it failed to ensure the accessibility of its online tax preparation services to visually impaired persons. The plaintiffs asserted that they, on behalf of themselves and a nationwide class of visually impaired individuals, including a subclass of blind individuals within Massachusetts, were deprived of services offered to sighted customers.
Title III of the ADA prohibits discrimination on the basis of disability in the full enjoyment of goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation by any private entity that owns, leases (or leases to), or operates any place of public accommodation. To establish a cause of action under Title III of the ADA, a plaintiff must demonstrate: (1) he/she is a “qualified individual” with a disability; (2) that the defendant is a public accommodation as defined under Title III; and (3) that he/she was denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities, or was otherwise discriminated against by a defendant on the basis of her disability. Likewise, MERA establishes a cause of action for injunctive relief, as well as compensatory and exemplary damages, for persons discriminated against on the basis of handicap. To establish a violation of MERA, a plaintiff must show that, based on the totality of the circumstances, he/she is a handicapped individual, and was excluded from the benefits of and participation in a program or activity.
Assuming the first two elements of an ADA claim are satisfied, a company like the defendant in the above case would be required to make reasonable modifications in its policies, practices, or procedures, when the modifications are necessary to afford the goods, services, facilities, privileges, advantages, or accommodations to visually impaired individuals. In this case, the plaintiffs contended that reasonable accommodations were available to provide the online tax services, but the defendant failed to implement the necessary modifications to their website to attain that accommodation.
The internet provides a significant source of information and education, among other things, to visually impaired and sighted folks alike. As the plaintiffs and government in this case illustrated, visually impaired persons can and do access the internet by using assistive technologies to interact with computers and websites. Some assistive technologies noted include screen reader software, refreshable Braille displays, captioning, and keyboard navigation. Screen reader software translates to audio information presented visually on a computer screen. Moreover, keyboard navigation is available, which allows keyboard input rather than a mouse to navigate a website. In the alternative, refreshable Braille displays convert online information to Braille on a peripheral hardware device. In their complaint, the plaintiffs asserted that “[u]nless Internet applications and software are designed to allow for use with screen access software, blind persons are unable to fully access the information, products, and services offered through the Internet.” The plaintiffs averred that the tax preparation website was not programmed so that it could be operated using screen access software. Specifically, the plaintiffs referred to the website’s lack of alt-text on graphics; unlabeled or mislabeled buttons, headings, and links; lack of error messages; and other components not detectable by screen access software. As a result, the plaintiffs argued they were unable to access all the same information, enjoy all the same benefits and services, and engage in all of the transactions available to sighted persons.
Nevertheless, while the parties addressed the respective issues outside of court, much information can be garnered from the case respecting the standards for determining potential violations of MERA and Title III of the ADA. Namely, the Department of Justice’s (“DOJ”) complaint in intervention is a sign of the federal government’s commitment to ensure website accessibility. Indeed, the DOJ has noted that “[a]though the language of the ADA does not explicitly mention the Internet, the Department has taken the position that Title III covers access to Web sites of public accommodations.” Although the federal government acknowledges it has not issued regulatory language on website accessibility, it notes specifically in its complaint that “[website accessibility] discrimination persists notwithstanding the existence of readily available, well-established, consensus-based guidelines for delivering Web content in an accessible format —the Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”), which are available [online].” In fact, contained within the consent decree reached by the parties in the case, the tax preparation company was to ensure that its services conformed to, at a minimum, the “WCAG 2.0 AA” standards.
While it has been suggested that the DOJ will adopt the WCAG standards for public accommodations websites in its ADA regulations, it should be emphasized that the WCAG remain just that—guidelines. Notwithstanding, if an entity is a place of public accommodation and seeks guidance on how to conform its web services to the ADA, the case discussed herein indicates that the WCAG is likely one important resource businesses should consult. Businesses seeking guidance may also want to contact their web designer or legal counsel for guidance on the ADA, and especially, if a claim or lawsuit is filed.
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