Court Orders Biz to Make Site Accessible to Visually Impaired; Fails Same Test

Mon, 4th April 2016, 19:05

Last year Edward Davis sued Colorado Bag’n Baggage in a California court claiming he couldn’t shop online for the retailer’s products because its website was not accessible to the visually impaired. The suit claimed violations of the federal Americans with Disabilities Act and a California anti-discrimination law. This week, Judge Bryan F. Foster of San Bernardino Superior Court granted summary judgement in the suit.

In its order, the court noted that the plaintiff had:

“presented sufficient evidence and legal argument to conclude Title III of the ADA applies to plaintiff’s use of a website where plaintiff has demonstrated he sought goods and services from a place of public accommodation because he demonstrated a sufficient nexus exists between defendant’s retail store and its website that directly affects plaintiff’s ability to access goods and services.” Further, the plaintiff had “presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by [the retailer] because of his disability.”

The court ordered the retailer to pay the plaintiff $4,000 and to take the necessary steps to make its website “readily accessible to and usable by visually impaired individuals or to terminate the website.” Because the law allows the plaintiff to recover attorney’s fees and costs, the price tag is expected to reach 100K. (editor’s note.. And here I thought only security experts and politicians were screwing the general populous!) Lawyers for the plaintiff said the ruling broke new ground in an expanding litigation area.

HostJury has written a number of articles over the years on accessibility for the visually impaired including the one about the Ontario Gov passes Accessibility Standards Law then fails to follow it. In that article, a number of accessibility errors showed up on the government’s site making the announcement. Four years later, the content of the page has been updated but the same tests still produce errors similar to the one in the San Bernardino case.

The next accessibility test HostJury conducted was on the San Bernardino county government's official website The test reveals 59 known errors and a further 1267 potential errors. The editor correctly pointed out that the San Bernardino county gov is not the same as the San Bernardino Superior Court.. So another test is run on the Superior Court site and … 22 Errors, 56 Alerts, 15 Features, 41 Structural Elements, and 3 Contrast Errors.


Screenshot of the Superior Court of California Wave Test


As predicted before, these types of cases are likely to continue. (editor chimes in.. Reebok was recently hit with a proposed class action alleging that the company’s website violates the Americans with Disabilities Act). If you aren’t sure whether your eCommerce or business website is accessible to the blind, now may be the time to find out.

Free web accessibility tools like AChecker and Wave are readily available. WebAIM {} goes further and will provide a statement declaring the level of accessibility of your web site on a specific date. There are four steps to site certification:

  • WebAIM conducts a comprehensive review of your site, generally on a representative sample of pages.
  • They provide a report that documents compliance and other accessibility barriers found on your site.
  • Once the documented accessibility requirements are met and verified (this may take a few iterations of re-evaluation and reporting), they will certify the accessibility of your site to a predetermined standard.
  • If you'd like, they can then monitor and re-certify your site to ensure accessibility over time.

The cost for the certification is.. Zero dollars!

The alternative.. the domain is hosted with Network Solutions and currently shows a holding page “This Site Is Under Construction and Coming Soon”. Getting a sense of whether your site can be navigated using a screen reader will provide a better sense of whether the site could be considered a “low hanging fruit” for plaintiffs and their lawyers to find.


One Final Note

The lead counsel for the plaintiff in the Colorado Bag’n Baggage case is quoted in the WSJ Law Blog saying:

that the ruling marked the first time in such a lawsuit that a court has entered a judgment in favor of a plaintiff over a defendant’s objections. “It’s pretty groundbreaking,” said Scott Ferrell, founding partner of litigation boutique Newport Trial Group.

So HostJury ran a Wave test on the Newport Trial Group website…

screenshot of Wave error report for Newport Trial Group website

Maybe some of those legal fees from the San Bernardino win could be used to ensure their website is accessible to the visually impaired. We have reached out to the parent company of Colorado Bag’n Baggage for comment.


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