The Click-Away Pound Survey 2019

“Worldwide Web Accessibility - cases from the USA”

Bela Gor, Legal Director, Business Disability Forum

Websites and online applications must be accessible for all users including people with disabilities. Most companies know this and yet their websites remain either inaccessible or unusable for many disabled people. In the UK few organisations have been sanctioned for inaccessible websites under the Equality Act 2010. Not so in the USA. Here’s a quick round up of some significant cases from the United States. They are notable not just for the amounts the companies have agreed to pay out but also for the agreements to appoint accessibility officers who report to senior management, the requirement to allow feedback in various formats on accessibility by users and the training obligations imposed. Courts in Britain are unlikely to award anything near these sums but the cost to business of customers who “click away” because they cannot use their websites must be comparable. The Click-Away Pound survey aims to find out.

Target Corporation - a $6 million dollar settlement

Target, a retail outlet selling discount consumer products and general groceries operates some 1,600 stores throughout continental United States and in Hawaii and Alaska. In 1999 Target launched Target.com and by 2005 it had reached annual sales of $50 million. Its website receives approximately 934,265 visitors a day.

In May 2005 The National Federation of the Blind (NFB), a non-profit organization representing blind people in the United States, based in Baltimore, Maryland, notified Target Corporation that its website, Target.com, was not accessible to blind and visually impaired users. Key issues cited were:

a lack of alternative (alt) text on the site
online purchases could not be completed without the use of a mouse
image maps to show store locations were inaccessible
many headings important to navigating the site were missing

Target Corporation would not commit to any action to remedy this and so in January 2006 the NFB filed a lawsuit alleging that Target.com's lack of accessibility violated:

the California Unruh Civil Rights Act (California Civil Code Section 51 et. seq.) requiring any business establishment of any kind to be accessible if doing business in California
the California Disabled Persons Act (California Civil Code Section 54 et. seq.) requiring any public place ‘and other places to which the public are invited’ to be accessible
the Americans with Disabilities Act (ADA) which prohibits discrimination against people with disabilities in “places of public accommodation”

Target Corporation filed motions to have the case dismissed but a Judge ruled that California’s anti-discrimination law does cover websites whether or not they are connected to a physical space and that the ADA’s non-discrimination provisions covered those services of Target.com that were integrated with those provided by physical Target stores.

In August 2008 Target Corporation settled the class action lawsuit brought by the NFB. It agreed to pay class damages of $6 million and to make their website fully accessible by 28 February 2009. Progress on this would be monitored by the NFB. In addition The National Federation of the Blind was awarded reasonable attorney's fees and costs of $3.7 million. Target's own legal costs have not been published.

Peapod Grocery Delivery

Peapod is America’s leading Internet grocer, delivering more than 23 million orders in 12 Midwest and East Coast states and the District of Columbia. In November 2014 Peapod entered into an agreement with the US Justice Department to resolve allegations that www.peapod.com was not accessible to some people with disabilities, including those who are blind or have low vision, deaf or hard of hearing or who have physical disabilities affecting manual dexterity and use assistive technology such as text-to-speech screenreaders, refreshable Braille displays, keyboard navigation and captioning. Under the agreement, Peapod was required to:

ensure that www. peapod.com and its mobile applications conform to, at minimum, the Web Content Accessibility Guidelines 2.0 Level Double-A Success Criteria (WCAG 2.0 AA), except for certain third party content;
designate an employee as web accessibility coordinator for www.peapod.com, who will report directly to a Peapod, LLC executive;
retain an independent website accessibility consultant, who will annually evaluate the accessibility of the website and its mobile applications;
adopt a formal web accessibility policy;
provide a notice on www.peapod.com soliciting feedback from visitors on how website accessibility can be improved;
provide automated accessibility testing and accessibility testing by individuals with a variety of disabilities of www.peapod.com and its mobile applications;
provide mandatory annual training on website accessibility for Peapod’s website content personnel.

Acting Assistant Attorney General Vanita Gupta for the Civil Rights Division said “This agreement ensures that people with disabilities will have an equal opportunity to independently and conveniently shop online for groceries,” and “We applaud Peapod for working cooperatively with the department and for its commitment to customers with disabilities.”The Justice Department added that it has long considered that Title III of the ADA apply to online services and communications.

Carnival’s Cruise Ships - 2015

In late July 2015 and coinciding with the 25th Anniversary of the Americans with Disabilities Act (“ADA”), the Department of Justice (“DOJ”) entered into a landmark settlement agreement with Carnival Corp. to improve the physical accessibility of 62 cruise ships sailing under the Carnival Cruise Line, Holland America Line, and Princess Cruise brands. This agreement is notable, however, because it addresses both physical accessibility of the ships and the accessibility of Carnival’s website, mobile application and reservation system.

The DOJ began its investigation into Carnival Corp. after receiving complaints from disabled people and their travelling companions about the alleged lack of accessible seating for entertainment and dining, accommodation procedures, deficient procedures for reserving accessible cabins and communication during emergency drills, and their inability to participate in various programs and services because of a disability. Carnival expressly denied that it violated the law, but entered into the agreement to avoid potential litigation.

For the first time the DOJ has taken the position that a cruise line must provide a minimum number of accessible cabins, conduct a survey of its ships, and develop a plan to improve the accessibility of its ships. This news startled many in the industry as the DOJ has never before issued any regulations setting the design standards for accessible cruise ships but given the demographics of cruise passengers it seems a wise business move to make ships more accessible to passengers with mobility or sensory impairments. The U.S. Access Board is still in the process of issuing final guidelines for accessible cruise ship design, but those guidelines will not legally binding until the DOJ adopts them through a proper rulemaking process

Carnival also agreed as part of the settlement to make its website and mobile application conform to the Web Content Accessibility Guidelines (WCAG) version 2.0, level Double-A. Carnival has agreed to pay a $55,000 civil penalty to the federal government and $350,000 in damages to eligible complainants.

In addition to the website and mobile application remediation, and damages noted above, the agreement requires that:

42 existing ships, and seven ships under construction, must be remediated to comply with certain aspects of ADA design standards that were written for accessible hotel rooms;
Three percent of the cabins on 49 ships must be accessible according to three newly-created levels of accessibility (again, based on design standards for hotel rooms) depending on the age and class of ship;
The cabins on the remaining 13 ships will be subject to remediation if still in service in four years;
Implementation of corporate accessibility standards and policies relating to management of accessibility issues, complaint procedures, training, reservations and bookings for accessible cabins, airport transfers, embarkation and disembarkation, youth programs, dining and entertainment venues, service animals, and more; and
Appointment of (i) an executive-level ADA compliance officer, (ii) two ADA responsibilities officers, and (iii) ADA shipboard officers for each ship who are responsible for issues that arise at sea.

H&R Block - 2014

The National Federation of the Blind (NFP)and two individuals (the plaintiffs) sued HRB Digital LLC and HRB Tax Group, Inc. (together, H&R Block) in federal district court in Massachusetts, alleging that H&R Block’s website, a tax preparation product on the H&R Block website, and H&R Block’s mobile applications contained barriers that prevented full and equal use by people who had vision, hearing, and physical disabilities, in violation of Title III of the ADA. That law prohibits discrimination on the basis of disability in the full and equal enjoyment of the 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. After the lawsuit was filed, the U.S. Department of Justice (DOJ) intervened on behalf of the plaintiffs.

Without admitting that it had violated the ADA, H&R Block entered into an agreement with the original plaintiffs and the DOJ.

H&R Block first agreed that it will not deny individuals with disabilities the opportunity to participate in and benefit from the goods, services, facilities, privileges, advantages, and accommodations provided through its website, its tax filing utility and its mobile apps.

Under a web accessibility conformance timeline H&R Block also agreed that its website and tax filing utility would conform to, at minimum, the Web Content Accessibility Guidelines 2.0 Level A and Double-A Success Criteria (WCAG 2.0 AA) by 1 January 2015.

Then, H&R Block also agreed that, by 1 January 2016, its mobile apps would conform to, at minimum, the WCAG 2.0 Double-A. The company also agreed that third-party plug-ins or content also would conform to WCAG 2.0 Double-A. The parties acknowledged that a third-party plug-in that H&R Block currently uses to display the map location of its physical offices was not in conformance with WCAG 2.0 Double-A, and H&R Block agreed that, within three years after the court approves the consent decree, it would provide a method of obtaining and using map content that does conform to WCAG 2.0 Double-A.

H&R Block also agreed to the following:

Designating an employee as the Web Accessibility Coordinator for its website, its tax filing utility, and its mobile apps by 15 June 2014, who would report directly to H&R Block’s chief information officer;
Adopting a Web Accessibility Policy by 1 June 2014;
Appointing a Web Accessibility Committee by 15 July 2014 charged with monitoring and maintaining conformance of its website, its tax filing utility, and its mobile apps with WCAG 2.0 Double-A throughout the five-year term of the consent decree;
Providing a notice by 15 July 2014, “prominently and directly linked from the www.hrblock.com homepage,” soliciting feedback from visitors to the website on how the accessibility of its website, its tax filing utility, and its mobile apps could be improved. This link must provide several methods to provide feedback, including an accessible form to submit feedback or an email address, and a toll-free phone number – with Teletypewriter (TTY) – to contact representatives knowledgeable about the Web Accessibility Policy;
Training its call centre agents by 1 December 2014 to automatically escalate calls from users with disabilities who encounter difficulties using its website and tax filing utility, and having at least five percent of its staff trained to handle escalated calls;
Providing web accessibility training to all employees who write or develop programs or code for, or who publish final content to, its website, its tax filing utility, and its mobile apps on how to conform with WCAG 2.0 AA;
Creating a User Accessibility Testing Group by October 1, 2014; and
Retaining an independent web accessibility consultant.