Much like lawsuits demanding such things as wheelchair ramps and handicap parking, the suits claim the defendants’ digital real estate is so inhospitable it denies access.
Late last month, Noah J. McCourt, a disability advocate with autism from Waconia, sued Carver County as well as the cities of Norwood Young America and Chanhassen in federal court, claiming their websites violated both state and federal disability law.
“I really think that this kind of issue is really a question of who we want to be as a community. Do we want a community that says we’re open to business or we’re closed?” said McCourt, who noted that he has 10 other disability-related suits pending against Carver County.
McCourt claims that the county and cities are violating the federal Americans with Disabilities Act, the Minnesota Human Rights Act, and a lesser-known federal law called the Rehabilitation Act of 1973, which makes it illegal for entities to deny people with disabilities access to “programs or activities” that receive federal funding.
Officials with Carver County and Norwood Young America declined comment on the suits, noting they typically do not comment on pending litigation. Chanhassen officials did not immediately return a call for comment Friday.
While some private Minnesota businesses have been sued in other states — particularly New York, California and Florida — attorneys and industry experts who have been keeping tabs on the trend say this is the first time they can recall such a suit being filed in Minnesota.
“To my knowledge it is the first. This really hadn’t made its way to Minnesota yet,” said David Fenley, ADA and access coordinator with the Minnesota Council on Disability.
Although the Americans with Disabilities Act does not include language specific to digital real estate, the precedent set by suits in other states has made fighting such suits difficult, legal and industry experts say.
And the number of lawsuits is increasing. In the first half of this year, there were 1,053 such suits filed across the nation — a 30 percent uptick from last year, according to Chicago-based law firm Seyfarth Shaw, which tracks the trend.
MOST LAWSUITS INVOLVE HEARING, VISUAL IMPAIRMENTS
The vast majority of cases brought across the nation involve plaintiffs with either visual or hearing impairments.Given that the web is increasingly used by both public and private entities — sometimes solely — for everything from applying for a job to signing up for classes or a community activity, having a website that denies access severely limits what people with disabilities are able to do, plaintiffs argue.
Since the ADA has been in effect since 1990, and the Rehabilitation Act a good 17 years before that, the question is, why are these lawsuits picking up now?
“You usually see a wave of litigation where there’s a new law, but that’s not the case here,” said Steven E. Helland, a partner with Minneapolis-based Fredrikson & Byron, P.A. who defends clients undergoing disability litigation relating to websites.
The reason is this: For years, many potential plaintiffs were waiting for the U.S. Department of Justice to issue their interpretation of the ADA about to websites. That never happened.
And after the DOJ once again extended its deadline in 2015, “it felt like that clarification was never going to come,” Helland said. A wave of lawsuits hit the federal court system that year and the next.
Others point to the way websites have developed. In many cases, as websites have become more sophisticated, access to them has actually worsened.
“Websites back in the day were incredibly simple: They looked like posters. The functionality was very simple,” said Michele Landis, co-founder of Minneapolis-based Accessible360, a consulting group that audits websites, many of which are the subject of disability litigation. “But as the Internet took off, accessible design dropped off.”
Having a website that conforms with programs used by the deaf or blind is a baseline, but the structure of sites — whether pages are intuitive; whether links or downloads are reachable by everyone — also counts in court. Courts often have used a set of guidelines put out by a trade group, called the Web Content Accessibility Guidelines, as a touchstone.
And so far, courts typically have sided with plaintiffs bringing website-related disability cases.
“Almost always without exception. I can count very, very few (where they didn’t),” said Landis. “Every other first-world country has this as national law.”
A 2017 study by the Information Technology and Innovation Foundation — a nonprofit Washington, D.C., think tank — concluded that 85 percent of government sites are not ADA accessible.
But historically, most of the suits have targeted private businesses. In a landmark 2008 case, for example, Target Corp. was sued by the National Federation for the Blind over its website, and settled for $6 million.
“Even developers at some of the biggest agencies, very sophisticated web developers, they don’t know anything about digital accessibility either. It’s a myth that anyone out there has been developing with accessibility in mind for the vast majority of years,” Landis said.
McCourt’s case is atypical: he has autism, rather than a visual or hearing impairment.
“I have a lot of have muscle issues. When I use my computer, a lot of times I cannot use my mouse,” McCourt said.
His suit claims that the governmental websites had links that couldn’t be reached with a keyboard.
But also, McCourt said the organization of the site was unintuitive enough to be unusable for him. When searching for the county’s public records policy, he could not find it.
“I had to find it by Google. I could not find it by navigating the website. … I would say I like structure, and I find it more irritating than others. I get really irritated and really bent out of shape when I cannot access it,” McCourt said.
Landis said that for private or small businesses worried about such lawsuits, the cost of fixing a site is “way less” than getting sued, and building one that conforms to court-recognized guidelines “shouldn’t cost incrementally any more to build it correctly. The cost is going back and rebuilding it.”
But she added that future-oriented businesses should want to build an accessible site anyway.
“Everything is digital, and we are all aging. It’s not just for those that are currently disabled; it’s for all of us as we age,” Landis said.
©2018 the Pioneer Press (St. Paul, Minn.) Distributed by Tribune Content Agency, LLC.
