by Deborah Jeanne Sergeant
The doorways at your tasting room are wide enough. You have ramps at entrances and designated parking spaces and restroom stalls. You think you’re completely accessible. But you could find yourself sued for lack of accessibility if your website isn’t compatible with software that reads text for those who are visually impaired.
Stephanie Hoppe Fedorka, associate in Labor and Employment at Bond, Schoeneck & King in Syracuse, NY, explained that the Title III of Americans with Disabilities Act (ADA) “applies to places of public accommodation.”
A more recent interpretation of ADA law includes websites as a place of public accommodation since they’re “places” where people shop, obtain information and seek entertainment. As a result, more than a dozen lawsuits have been filed against wineries in the Hudson Valley area and on Long Island alone because their websites aren’t accessible for people who are visually impaired.
If your website doesn’t allow people with screen reading software to access it, your website probably doesn’t comply. Hoppe Fedorka said since no law explicitly states what is compliant and what isn’t, ag business owners have no legal guideline to meet.
Though not legally binding, the Web Content Accessibility Guidelines (WCAG) is a technical guide to compliance and courts have recognized that business owners that comply to WCAG are making a good faith effort to extend accessibility.
While no business owner would want to exclude someone from accessing their site, the cost to revamp or redesign a site could be several thousand dollars. Hoppe Fedorka said a small business may be able to claim that compliance causes an “undue hardship” for them.
“It’s a case-by-case basis,” she said. “You would have to prove it’s an undue hardship. It would take some effort to support how much it would cost and why it would be an undue hardship to provide this accommodation.”
An information technology (IT) professional would likely need to survey the website to determine how costly redoing the site would be to help the farmer prove hardship.
It may seem easier for the owner to argue they didn’t realize that their website wasn’t complying, but Hoppe Fedorka said ignorance won’t hold up as an argument in court.
A statement such as “Visually impaired persons should call this number for assistance” probably won’t stand up either.
“My inclination says it’s probably insufficient,” Hoppe Fedorka said. “It’s not the same versus being able to use the website and order. But there’s no clear guidance and there’s litigation now. It allows attorneys to make those arguments as it’s not well-established.”
Relying upon social media for an online presence likely shifts the responsibility for accessibility onto the provider.
Once an owner gets their site upgraded and updated, they’ll probably need to keep changing it every time there’s a change in the WCAG or whatever legal standard becomes adopted legally. The website for Disabled World (www.diabled-world.com) lists more than 80 screen readers. As these change and upgrade, websites must change to stay accessible.
Articulating your brewery, winery or distillery’s risk can be difficult. A smaller business is not a likely target since with few resources a plaintiff would not be able to recover a large settlement.
“There’s always a level of risk there if you have a website and you’re a public establishment,” Hoppe Fedorka said. She advised owners to consult with an attorney and IT professional to assess risk.
“I think we’ll see more of this,” she added. “Litigation is so costly that it’s easier to settle it, in which case there’s no court decision. Sometimes, these cases drag on for years.”
Scott Osborn, president and co-owner of Fox Run Vineyards in Penn Yan, NY, serves on the Wine America Board of Directors. He first heard about website lawsuits in November and felt surprised and a little disappointed by them.
“There are no standards, yet we’re automatically at fault,” Osborn said.
But he wants everyone to access his website and began working on getting the winery’s website ADA compliant.
“The challenge is most web developers don’t have a clue on how to do it,” Osborn said. “So few of these companies can get you ADA compliant. If you’re getting sued and need it in 30 days, they say ‘Get in line.’ They can’t just flip a switch. They have to have people who are visually impaired go through every page of your site to make sure it’s compliant and that takes time.”
He has spent about $3,000 to fix up his site and pays $950 for a yearly subscription to maintain the site’s compliance.
“It’s a lot cheaper than paying an attorney $10,000 and that’s before a settlement,” Osborn said. “You might be into $30,000.”
Osborn also feels like a non-litigious approach would have been more constructive than pouncing on business owners not in compliance.
“The government should let people know they should get to a level of certain standards,” Osborn said. “We need education out there. If they started doing this 10 or five or even two years ago, we wouldn’t have this problem.”
One of the companies providing website accessibility upgrading is Accessibility Works, a division of Propeller Media Works in Burlington, VT. Dave Gibson, president, said the difficulty of the transition depends upon the condition of the website initially. Factors such as color contrast and font size make a difference for someone with low vision. A site also needs image alt tags, which provide a written description of illustrations. Sites need to be compatible with screen reading software too.
“This is going to be a new cost of doing business,” Gibson said. “We’re going to be hearing much, much more about this.”
Auditing and testing tools may help; however, Gibson said they detect only 30% of issues. Manual testing is more accurate but takes more time and money. A large site combed thoroughly could cost $40,000 to $50,000. A very small, simple site could be between $7,000 and $15,000.
While he’s sympathetic toward those with visual impairments who simply want to access sites like anyone else, “it’s frustrating for website owners,” Gibson said. “They say ‘This isn’t fair.’ It’s similar driving on the highway and there are no speed signs anywhere and you get pulled over and the police officer says ‘You’re speeding.’ You didn’t know the speed.”
He wants companies to be granted a grace period that can allow them time to become compliant before facing a penalty.
“The majority of them have no idea that they’re breaking the law,” Gibson said. “These law firms are doing legal extortion. They’re saying ‘Your website is not ADA compliant and we’ll sue you if you don’t do this, this and that and you pay us.’”
Gibson recently attended an accessibility conference in California. From his impression there, he believes this issue will become even bigger than the original ADA compliance.
He has looked at physical barrier cases since 1990, when attorneys sent out people to measure doorways and take photos of businesses as proof for lawsuits.
“In the case of digital, all they’re doing is cutting and pasting a URL into an automatic testing software,” Gibson said.
He thinks that once more attorneys catch on to how easy it is to drum up ADA website cases, “it’s going to explode.”
For more information, visit www.w3.org/WAI/standards-guidelines/wcag .
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