ADA demo

In June, the owner of a veterinary practice in White Plains, New York, posted on a closed Facebook page for the profession that he had been sued by a blind man because his hospital's website was not accessible to him. The plaintiff alleged the website was not designed to be read by screen-reading software, denying him access to the same content as sighted users, and therefore violated the Americans with Disabilities Act (ADA).

He said that a lawyer told him the suit could cost him between $16,500 and $22,000 to resolve. "This has been a huge headache," he wrote. The post sparked concern among those in the group who weren't aware websites could run afoul of the ADA.

While the VIN News Service knows of no other veterinary practices that have been sued for website violations of the ADA, since 2015, thousands of businesses large and small have faced this type of litigation and ended up paying a settlement.

Accessibility refers to the ability of individuals who are blind or have low vision, are deaf or hard of hearing, have cognitive impairment, or have physical disabilities affecting their manual dexterity to access information on the web and use its services. It applies to design elements that can affect how a site is perceived and navigated, and to technological issues that help or hinder assistive software such as screen readers, which read sites aloud as an aid to blind people.

There is no official tally of the number of business websites that aren't accessible, but it's a safe bet that most do not comply.

Small business owners, including veterinarians, find themselves in a difficult spot. Many are not aware of these requirements, and most rely on web designers, developers and hosting services that are not up-to-speed on the technical requirements.

Making things more complicated: The legal issues around website accessibility are moving targets.

The ADA, signed into law in 1990, requires businesses to be accessible to people with disabilities. Because commercial internet was in its infancy at the time, websites weren't expressly included in the law. As the World Wide Web has taken an ever-larger role in daily life, this omission has left the status of websites and the ADA open to interpretation.

Charged with enforcing Title III, which relates to public accommodations, the U.S. Department of Justice has taken steps that suggest it believes the law applies to websites. In 2003, the DOJ issued a Voluntary Action Plan for web accessibility for government agencies.

In 2007, the department issued additional recommendations for website compliance, followed in 2010 by an Advanced Notice of Proposed Rulemaking. The notice stated that the DOJ was considering revising the ADA to include requirements for website accessibility. That process was delayed until December 2017, when these "rulemakings" were withdrawn. The action was part of the Trump administration's freeze on all pending regulations until further review.

"Those regulations have now been put into cold storage and are not in effect, which means we don't have an official standard," said Richard Hunt, a Texas attorney who defends businesses in ADA litigation. "We just have a kind of this-is-what-everybody's-doing standard."

Federal appellate courts have not resolved the issue. Some have found that the ADA disability standards apply to all websites; others have held that websites fall under the ADA only if they are connected to brick-and-mortar businesses. In either case, Hunt said, veterinary clinic websites are covered under the ADA. What level of accessibility qualifies as acceptable is less clear.

Surge in litigation

For the first 35 years of the ADA's existence, there were about 60 lawsuits relating to web accessibility in the public record, according to Karl Groves, a web accessibility consultant based in Maryland. That's fewer than two per year on average. In 2015, the numbers exploded.

In July alone that year, about 40 lawsuits alleging inaccessible websites were filed in Pittsburgh against companies such as Foot Locker, Toys "R" Us and Brooks Brothers by the local law firm of Carlson Lynch. Most of these lawsuits settled quickly, for between $10,000 and $75,000, "with the money typically going toward plaintiffs' attorneys' fees and expenses," according to The Wall Street Journal, which reported on the phenomenon of serial website-compliance lawsuits in 2016.

"One of the funny things about the Americans with Disabilities Act is the plaintiff cannot get any money out of the lawsuit," Hunt said. "They can get an order to fix the problem, and they can get their attorney fees paid, but they don't get money themselves. The only person who gets money out of an ADA lawsuit is the lawyer." The ADA doesn't explicitly mention damages. Hunt explained that courts applying the statute have reached the conclusion that because the law doesn't mention damages, the plaintiff cannot get them.

Carlson Lynch followed the initial suits with rounds of demand letters to other businesses, which again settled rapidly, Hunt said. The activity drew publicity. "At that point, other lawyers started looking and thought, ‘Oh, this is a good idea,' " Hunt said. "Lawyers respond to opportunity like anyone else, and once the opportunity was clear, the lawsuits started expanding in number. The plaintiffs' lawyers also started attacking smaller and smaller businesses."

Plaintiffs' attorney Bruce Carlson told the Journal that his firm targets larger companies because that is more likely to make industries aware of accessibility issues. He did not respond to VIN News Service requests for an interview.

"But the lawyers who have come in after [Carlson Lynch] are taking a different approach, which is ‘Who can we sue that isn't big enough to even think about fighting us, and will just pay us off,' " Hunt said. "That's where you get the lawsuits against veterinary firms and pizzerias."

The June lawsuit against the White Plains veterinarian was one of 33 filed by the New York-based law firm of Cohen & Mizrahi that month. Other defendants included a dog grooming and boarding company and an online pet supplies store. Tucker also sued a power tool company, yoga studios, a watch brand, an in-home caregiving service and The Honey Baked Ham Company. The case against the White Plains hospital was dismissed in August. The clinic did not respond to VIN News' requests to talk about the litigation.

As of October 15, seven cases had been dismissed, 15 settled, and 11 remained open.

Cohen & Mizrahi was called out for the practice of filing serial ADA lawsuits in a story on the Vox Media site Racked. Partner Dan Cohen told Racked, "I don't really have much to say except we're trying to make the world a better place." The firm did not respond to calls and emails from VIN News.

What is compliance?

In the absence of government regulations, defining what constitutes accessibility has been left to the private sector, most specifically, the World Wide Web Consortium. With representatives from big technology companies such as Facebook, Microsoft and Adobe, academics and others, this international community creates standards for the web. Its Web Content Accessibility Guidelines (WCAG) are frequently cited as the benchmark in ADA lawsuit settlements.

"Even though there is no regulation, there is a standard that [business owners] can look to and that they can tell their web person that they need to meet," Hunt said, referring to WCAG.

The specifications cover a range and get highly technical. Some easy-to-grasp examples include using contrasting colors for people with low vision; making all functionality accessible from the keyboard, rather than requiring mouse movement for individuals with physical or motor disabilities or who can't see the cursor on the screen; using subtitles or even sign-language interpretation for videos for those who are deaf or hard of hearing; and providing an equivalent text alternative that describes images and video transcripts for screen-reader software.

The specs are organized in compliance levels, which don't strictly align with importance, explained Groves, who implements the guidelines for Fortune 500 and 100 companies. He explains that A-level specifications have a high impact on the user and should have minimal impact on the user-interface or design; AA-level also have a high impact on the user and may have an impact on design; and AAA-level are more technically challenging to implement and may have a lesser impact on users but still are important.

"What I say to people is, comply with A as your absolute minimum as soon as you possibly can," Groves said. "Your eventual target should be double A. And in those cases where you can implement things in triple A, I say, do it."

He concedes that this is easier said than done. Even at the major companies with which he works, many developers don't know much about accessibility. "That's the reality in the industry," Groves said. He added that most developers are self-taught, and this issue isn't on their radar.

"Even in colleges where they teach computer science, they treat accessibility and usability as afterthoughts," Groves said. "I feel bad for small businesses because the kind of developers that you're going to hire who are going to make a small business website probably have zero knowledge of this topic at all."

There are automated systems that allow website owners to test the accessibility of their sites with the push of a button. But according to Cristopher Broyles, executive vice president for accessibility and inclusion at the American Foundation for the Blind (AFB), "The best automated testing gets only 15 percent of WCAG guidelines, leaving an 85 percent gap."

Working with business owners and website developers, AFB provides an access review and remediation for websites, apps and other digital products that includes human experts reviewing actual code and visually impaired individuals testing sites with screen readers and magnifiers. A website review (or app review) for WCAG 2.1 conformance by AFB generally runs between $2,500 and $25,000. Variables include site/app complexity, site size, mobile-device testing, and testing methods employed.

These are costs to weigh against the fact that veterinarians with inaccessible websites have very little chance of prevailing in a lawsuit.

"Almost everything that you can do when you get sued in federal court on a website accessibility claim … is going to lose in round one, maybe in round two as well. So that's bad news for people who get sued," Hunt said. "The good news is that most of the people filing lawsuits, particularly the people filing lawsuits against small businesses, really are just in it to get a quick payout."

In Hunt's opinion, the best approach is "you don't spend a bunch of money fighting and then try to make a deal. You just start out making a deal."

Under typical settlements, the defendant agrees to make their website accessible within a time period, like 18 months, and to pay X to the litigants. Most of the settlement goes to attorneys' fees. The usual range is between $4,000 and $20,000, depending on the law firm and where the suit was filed, according to Hunt.

"It's important to know, if you settle one case, that doesn't keep you from being sued by somebody else," said Hunt, who added that it's happened several times already. Defendants settled one case and were in the midst of updating their sites, when a new person sued them and they had to make a deal all over again.

The hazard is particular to these cases. "The problem with website litigation is that somebody can look at websites sitting in their home or office," Hunt said. "So, they can look all over the place very quickly and the chances that you'll get sued twice have therefore gone up."

Unintended consequences

The question of whether the flurry of lawsuits helps the cause of accessibility is an open one, according to Chris Danielsen, director of public relations for the National Federation of the Blind (NFB).

The NFB has been a plaintiff in several major website case settlements — in cases against H&R Block and the Law School Admission Council, for example — but, according to Danielsen, legal action is a last resort for his organization.

"We get involved in litigation when we can't get traction any other way," Danielsen said. As a rule, the NFB reaches out to noncomplying websites before taking action, even though it is not a requirement under ADA. In addition, the remedies requested in these settlements — generally WCAG 2.0 AA — often are made public.

The results are less clear for serial lawsuits against a hodgepodge of smaller companies. Many suits are settled quickly with confidential terms, Danielsen said. "So, it's hard to tell if the lawsuits are helping."

And they may hurt. "There's a backlash that is happening that could damage plaintiffs' ability to sue," he said, pointing to recent legislation.

In February, the House passed the ADA Education and Reform Act (H.R. 620). Proponents cited legal abuses of the law in the profusion of "drive-by" lawsuits, including litigation relating to websites.

That bill requires those wishing to sue businesses in federal court over an ADA violation to first deliver written notice to the business detailing the illegal barrier and then give the business 60 days to come up with a plan to address the complaints and an additional 60 days to make substantial progress in removing the barrier. The Senate received the bill on Feb. 26 but has taken no action to date.

Editor's note: This story has been published only for the VIN member community. Please do not copy or distribute it. While the majority of VIN News Service stories are accessible to VIN members (on vin.com) and the public (on news.vin.com), we elected not to make this story public out of concern that the content might inspire opportunistic lawsuits against veterinary practices.