It Isn't Just Hamburger Stands That Will Be Shut Down By ADA Lawsuit Filers. My Website And Countless Others Could Be
The Americans with Disabilities Act removed barriers to buildings for the disabled and made people like me more aware of disabled people.
I have disabled friends, so it's not like disabled people are invisible to me. But what I mean by "more aware" is that when I've hired editorial assistants the past two or three times, I put in my ad, "Disabled people are encouraged to apply. For the purposes of this job, I'm just interested in your brain and not whether you can run the 50-yard dash."
However, I wrote in 2015 about how websites, including this one, could be tanked and the owners ruined financially, especially if they are small business owners due to ADA regulations being used by scamsuit filers:
[Hans] Bader gives some examples from Walter Olson, from his testimony to Congress, of awful changes that would ensue, like that amateur publishing would become "more of a legal hazard." They'd go after websites like mine, that make a few shekels from Amazon links and a few more from Google ads. I need this money to supplement the money that's fallen out of newspaper writing; also, I love the people who comment here and the discussion that goes on. It's what keeps my eyes pried open at 11 p.m. when I need to post a blog item half an hour after I should have gone to bed for my 5 a.m. book- and column-writing wakeup time....Making something "accessible" for a tiny minority could ruin it for everyone.
More from Olson on the ADA scamsuit filers.
Mark Pulliam writes further on this in the LA Times:
ADA lawsuits are now as common as sex-discrimination lawsuits, with more than 26,000 new claims filed against employers each year. The latest litigants have their sights on the most innovative segment of our domestic economy: e-commerce.In this trend, people sue businesses because their websites aren't sufficiently accessible to the disabled -- because the websites lack assistive technologies for the blind or hearing-impaired, say. It began in 2000, when Bank of America became the first entity to settle a web-accessibility lawsuit. Safeway and Charles Schwab soon followed suit. In 2008, Target paid $6 million to settle a class-action suit brought by the National Federation of the Blind, and nearly $4 million more to cover the plaintiffs' attorney fees and other costs. More than 240 businesses across the country have been sued in federal court over website accessibility since the beginning of 2015. Similar litigation has been brought against universities on the grounds that the free online courses they offer aren't captioned for deaf users, and against ride-sharing services because their smartphone apps lack text-to-speech capability for blind users.
...According to the demands of disabled users, in order for a website to be accessible, it must use fewer pictures, present text in a format that is compatible with text-reading software and employ design that allows for easy navigation. But the features that make a website more accessible for one disabled group are bound to be objectionable to another.
They may also conflict with other needs. Consider bank websites, which often employ timers that will shut down an online session for security reasons after a particular time period is exceeded. Such "timeouts" could present problems for some disabled users, but eliminating them in the interest of accessibility could impair security for all.
In the process of making a website accessible, questions invariably proliferate. Do certain color combinations violate the ADA because they confound the colorblind? Are certain layouts inaccessible if they're confusing to users with a limited field of vision? Do the accessibility requirements apply only to the websites themselves, or do they also apply to Web content, such as advertising on a third party's website? Will website hosts be responsible for the compliance of third-party sites? Must archived Web content be revised to comply? What about mobile apps? Do temporary technical bugs in an otherwise compliant website constitute a violation? What physical and mental conditions will require accommodation? So far, Web accessibility lawsuits have concerned the vision- and hearing-impaired, but future cases could be brought on behalf of plaintiffs diagnosed with dyslexia, ADD/ADHD, narcolepsy, cognitive impairments, paralysis and many other conditions.
He calls for this:
Congress should either exempt websites and their related content from the requirements of the ADA, or enact detailed guidelines for the accommodations required by the law.
Mere "guidelines" could kill my site and many others. Exemptions are needed. And consider how adding one more barrier to creating business or making a profit in a business will impact our economy.
Of course, we can count on legislators to be as stupid as they were with the "Affordable" Care Act, which ruined my previously affordable care. And here in California, there's a stupid law mandating "certificates of authenticity" with autographed material that is sure to be applied to applied to autographed books, despite assurances otherwise. (There are people who live to find scam-worthy loopholes in the law.)
There are people who have great faith in government's ability to protect them -- and who believe that legislators, by and large, are public servants, passionate about doing good for the populace.
Those who believe this are, sorry...idiots.
Most of these assistive technologies are already present in Windows or MacOS.
State that early and often.
Radwaste at June 11, 2017 8:58 AM
The ADA sucks. Typical "feel good" legislation, and who cares about the side effects.
The idea that disabled people should have the "same" access as non-disabled people is stupid.
Real example: a nice little restaurant on the second floor of an old building. No place for an elevator, and likely no money for one either. How is the world a better place, since the ADA forced them to close?
Disabled people are...wait for it...disabled. There are things they cannot do. Reducing the world to some lowest common denominator is not the answer. Life is unfair, news at 11:00.
a_random_guy at June 11, 2017 9:21 AM
It is an excuse for a shakedown. Nothung more.
Isab at June 11, 2017 9:47 AM
I think people with disabilities should have equal access,but making everything ADA compliant can be prohibively expensive. Technology has certainly improved the situation. I would think the website problems could be solved with adaptive equipment or software.
In other cases, it might be difficult or impossible to meet ADA standards and balance the budget. There are difficult choices to be made.
Carey at June 11, 2017 10:01 AM
Whatever happened to *reasonable* accomodation?
Whatever happened to the degree of requirements having something to do with the degree of burden involved?
The effective systems all encourage cooperation, and ADA law should too. No work towards improving things, no standing for a lawsuit. One working example being the hiking trails of Shenandoah National Park, which are maintained by a large number of volunteers.
Bank of America, a giant company with potentially millions of users is very different from The advice goddess, which appears to be a one-woman commercial writer's shop, which is still further different from "dietrolldie.com" which looks like it might have one person working part time on it.
I hope the small-timers discover anti-SLAPP (strategic lawsuits against public participation) laws.
And, there are definitely some reasonable things anyone can and should do quite easily -- most of them are simply good website "style", like tagging pictures with descriptions, making the form of the website obvious from the HTML, and not trying to require folks to read the ads before they can see the content, here's looking at you, newspapers, and otherwise trying too hard to control the user experience. Don't be like the crazy studios and try to DRM any audio, let someone who cares to transcribe it or translate it or subtitle it have at for everyone!
christenson at June 11, 2017 10:41 AM
At least the shakedown money will now be going to the government and not the shaking down organization.
USAG Sessions' latest move may curb some of these shakedown suits wherein an advocacy group complains, the government sues on their behalf, and the advocacy group profits with the proceeds.
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I thought the ADA required only "reasonable accommodation." Thus, the Italian restaurant on the second floor of an old building would be exempt since installing an elevator would constitute an unreasonable accommodation.
Conan the Grammarian at June 11, 2017 12:41 PM
I am disabled. While ADA works well in some ways, it becomes discriminatory in others. Your Bank of America is a good example. Before audio books and computers, deaf and blind used other means to adapt. "Reasonable" is the clue to accommodations of any type for anyone. I used to own a shop in a very cute older town. It had historical and conservation rules where buildings couldn't be changed which today would limit some of the ADA accommodations. Also as a small business, the cost of changes if allowed would have put me out of business even though we went through any help our customers needed to get into the store and while shopping. Doors had to open OUTWARD. Ours was recessed in a small area with a slight incline, so a person in a wheelchair would not be able to open the door and get in on their own. There was NO way to change this legally. Fire building code required outward opening, one side of the area was the store next door and the other side was the 2 story building of the shop, The door could not be moved to the edge of the recess as there was no foundation on the building to attach it too, it was all windows. So now its prohibited by ADA, but there is no workable answer. The slight incline was so there were no steps, which would have been a bigger deterrent for disabled. I got out of business just before ADA rules went into place and don't know how the buildings owner or tenants have adapted to the rules. I can't remember a time when someone was truly disabled who came into my business with or without assistance, but we were a "customers first" shop, so went out of our way anyway for them. I would cringe at the idea of losing my business over ADA or a website. Being disabled, I find ways to adapt and realize I can't do everything, or many things on my own without assistance even with adapting. I view it as part of life. WE all have limitations of one type or another, even the ABLE bodied. I do appreciate ADA laws that have enabled some classes of disabled to be accommodated in better ways, but also disparage the fact that sometimes ADA laws have hampered life for others in that "reasonable" has a different meaning. Many of the ADA lawsuits are not filed as a solution for the disabled and by a person who really was a consumer, etc., but as a legal money making scam for the lawyers. Attorneys looking for people to sue for disabled who never would have been a customer in the first place ( who were paid 50.00 per suit filed) are an example of "legal" but wrong. Our lawmakers in trying to do good, didn't allow for "reasonable" either, as most of these suits do nothing to advance accommodation for the disabled, only to fill lawyers pockets and put people out of business. I would expect to see " website tests" since the attorneys can have someone do it in the office as the next legal scam. Again with "reasonable" not in the vernacular. It seems like only our legislature can do anything to change this and unless there is a large public outcry without disparaging the disabled, nothing will change. Adaption is required with many websites, just like before the ADA rules, and I hope reasonable people will utilize them prior to letting the use of their name being associated with a lawsuit. Just my long .02. Good luck.
Camlyne at June 11, 2017 1:27 PM
One of the fun things in my life was the Who Wants To Be A Millionaire Phone Game. You may recall that the original network game had a procedure where you could call in and compete for a chance to be on the show. I loved that I had a chance to qualify for a network game show without leaving my small town. An ADA lawsuit killed that and they switched to an in person audition. Well, they had more middle aged white guys than they were looking for. I ended up going to 11 auditions, passing the test and being ignored. The only time I had a chance was when they promoted a Halloween Week. You had to audition in costume. I am also a little nutty about Halloween so I had a Flying Monkey costume in my closet. In July of 2009 I flew to New York City (in a jet, not with my monkey wings), put on my awesome Flying Monkey costume in Central Park (yes there were some curious stares, even in Central Park) walked over to the ABC studios(sweating blue makeup the whole may in the July heat) and took the test as a Flying Monkey, I passed the test one more time, killed at the audition interview (I told them that I had donated 7.5 buckets of blood to the Red Cross among other Halloween themed things) and got a notice that I was in the contestant pool. The audition was so much fun!. Alas the Halloween week never happened (probably for copyright problems)
If I had won the Million dressed as a Flying Monkey I would have been an internet sensation.
signed
Former Middle Aged White Guy
tmitsss at June 11, 2017 2:24 PM
The WWTBAM case is here http://caselaw.findlaw.com/us-11th-circuit/1372696.html
tmitsss at June 11, 2017 2:31 PM
Yeah, it's enough to make a conservative out of you.
Welcome to the party, pal.
You'll learn eventually.
Chester White at June 11, 2017 5:27 PM
I think we can all agree that the immediate result of that was counter-productive.
Now, I'd like to know, ideally from those who can't use a telephone in the usual way, what a productive, reasonable result would have been?
I just don't think it would have represented a significant outlay to ABC to have included a TTY or TDD number or other alternate means of screening in this case.
Christenson at June 11, 2017 6:55 PM
I just don't think it would have represented a significant outlay
And yet it did, because rather than do that they shut the whole thing down
lujlp at June 11, 2017 10:04 PM
I was working in the investment side of a bank when the BoA agreement happened and my employer was worried we were not be too far down the list.
The web app I was associated with had a small upgrade planned. The estimated to make those changes more accessible was almost 10x then as planned and still were not that accessible. It was decided to just do some basic things like make a couple of high contrast themes and make sure any graphics had alt. text that was pretty good. A different app was being turned into a web version (from a desktop Windows). They went for full accessibility. It looked like crap and was much harder to work with. It reminded me of a lot of 90s DIY pages crossed with fake Windows in DOS stuff. This simplified design was for the screen readers. It was so bad the company decided to hold off a year and have "normal" version done with the ability of a user to set their account to use the original interface.
At that same company in our building they were upgrading all the toilet controls - more water efficient, better automatic flushing...not the porcelain part. Turns out they had not figured quite right and the work triggers that they have to come up to current code...in the men's room they need an additional stall which they can't add with the wheelchair accessible stall. Thus, lots of studies and negotiations begin. The studies proved they could not meet all requirements - the studies actually recommended knocking the building down and starting fresh. A compromise was reached that every other floor would meet one or the other requirement. I was on the fifth floor and we had a co-worker in a wheel chair so we got the accessible layout. The fourth had a stall added, the third was accessible. So a budgeted $5,000 project ended up costing about $400,000 (mostly studies and legal costs -- note they were not fined, everything was considered to have been handled properly). That was considered reasonable.
The Former Banker at June 12, 2017 1:19 AM
"I just don't think it would have represented a significant outlay to ABC to have included a TTY or TDD number or other alternate means of screening in this case."
The problem is that it's an endless loop. Say they do put in a TTY line. What about deaf people who use some other technology? They have to be accommodated too. What about deaf people who are also dyslexic or have vision problems? What about blind people? What about blind people who don't speak English? What about color blindness? Etc. If you look at any one of these things in isolation, it might seem like a reasonable accommodation. But throw in a bunch of them, and the cost adds up. Worse, once you start trying to accommodate all of these multiple conditions, all of the modifications and add-ons start to interact with each other in an adverse fashion. Suddenly the problem gets a lot more complicated, and the total cost winds up being far higher than just adding up the cost of accommodations for the individual conditions. But the plaintiffs and the judges and the juries are all pigeonholed; they focus only on the individual cases and don't consider or allow for the costs of system integration.
What it winds up being, intentionally or not, is an argument in favor of the proposition that if there is something that is not accessible to everyone, no matter what their condition, then it can't be allowed to exist. This is a variation of the narcissist's "if I can't have you, nobody can" threat.
Cousin Dave at June 12, 2017 7:08 AM
slightly different but I think it shows Cousin Dave's point.
In one of my work groups we often got taken to lunch by the company. As the group grew we ran into a problem. With all the diet restrictions there was no place that could accommodate everyone so the company stopped taking us to lunch. Joe and Putti were vegan. Stacy could not have gluten. Someone couldn't have peanuts or true nuts. That was the last straw...there was a Thai-fusion place that hard worked for everyone but there was peanuts in most their dishes and they couldn't guarantee no cross contamination. In fact they almost guarantee'ed it.
As small groups we could work around the allergies but not as the whole group.
The Former Banker at June 12, 2017 8:03 AM
I think it's fair to say that the vast majority of the lawsuits filed under the ADA have been abusive lawfare, if not outright fraudulent. Demand-letter mills go through business directly listings and just start with 'A'. They crank out hundreds of demand letters a day. Most businesses, and their insurance companies, will agree to pay a low-five-figure settlement, because the time and expense of defending themselves in court would ruin them. The mill uses boilerplate and interns to crank out the letters, so their cost is minimal. The professional plaintiff whose name is in the complaint gets a small payment, like maybe $50, and the mill pockets the rest.
On the off chance that someone decides to defend themselves, the mill either drops it or they hire a consulting attorney to handle it. Since full compliance with ADA is next to impossible, the consultant will find something, and then the demand goes up dramatically. Activists and protestors start appearing in front of the business and driving off customers. TV reporters conduct ambush-interviews of the business owner, and code enforcement authorities suddenly get very interested in the condition of the building. Word gets around and other business owners learn not to buck the system. Essentially, the settlements are protection money.
Cousin Dave at June 13, 2017 6:48 AM
I agree that the best of intentions of the ADA can be turned into some really bad juju through unintended consequences and desperate, otherwise unemployable lawyers.
Ideally, of course, the ADA lets each person with an issue be as fully independent as those of us without impairments, with all the implied full respect and value as a person that that implies.
I'm more interested in the idea that a bank cannot figure out how to accommodate non-hearing and non-seeing customers at a reasonable overall cost, that their web page is so cluttered it can't be handled by a screen reader and that a good start on the problem cannot be made and extended later as it startsd to make more sense.
Christenson at June 13, 2017 7:50 PM
Stories like this are exactly we started helping businesses avoid "Surf-By" lawsuits.
You wouldn't believe how easily a lawyer can throw together a demand letter and shake down an unsuspecting business owner.
We firmly believe that websites should be accessible, but it shouldn't be excuse for a frivolous lawsuit.
-Ada Site Compliance
ADA Site Compliance at July 20, 2017 2:01 PM
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