Equality law could hurt corporate defendants in web access lawsuits

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Tthere is probably no regulatory issue that I have sounded the alarm bell about longer than web accessibility, as they say. (Examples here, here, here, here, and here, among many others.) Many disability advocates believe this should be, or already is, a violation of federal law for a business or professional practice. to publish content online that is not fully accessible. This means, for example, equipped with video captions and descriptions of actions, alt text or alternative navigation methods for the benefit of potential users who are blind, deaf or lack the fine motor skills necessary to control a mouse, not to cite only three User Groups.

The question has great implications. The University of California at Berkeley is among the institutions that have removed content from free courses rather than risking the responsibility of maintaining them without what either user might find adequate usability. Even large businesses struggle with costly and unstable accessibility standards, while small users, such as family businesses with simple websites, fail to provide the closed captions and other fixes that are requested. Lawyers have filed thousands of cookie-cutter lawsuits, blaming all kinds of businesses for lack of online accessibility, hotel and airline reservation systems to the bottom, and have consistently demanded thousands of dollars to drop a lawsuit and walk away. Eric Goldman, the internet law-maker, put it bluntly nine years ago: “If websites have to comply with the ADA, hell will break loose.

Courts, fortunately, have tended to scorn the idea that, say, a grocery store with a website that isn’t fully accessible is somehow the legal equivalent of a physical store that doesn’t build a ramp at the benefit of wheelchair users. A key question in court was whether an online-only business, or a merchant-owned website that also offers orders by phone, should be considered an “establishment”. (Again, don’t assume this all applies only to large companies; sole proprietors are prosecuted, and liability could in principle extend to a website set up to post a person’s dissenting opinions. which works on subscriptions or becomes commercial in some otherwise, such as by selling t-shirts.)

The Equality Act, the hugely ambitious bill passed by the House in February and pending in the Senate, may well shift the landscape in some of these debates in favor of plaintiffs. The law is touted as extending the legal rights of gays, lesbians and trans people, and it would indeed provide lawyers with an abundance of new ways to sue on their behalf, in areas ranging from housing and credit to jury service. In particular, it would extend the hand of federal control to a much wider range of “public housing” than is currently covered – federalizing countless Main Street disputes – while removing many religious exemptions and exclusions, especially those currently covered. under the Restoration of Religious Freedom Act.

Beyond all this, the Equality Act contains many less scrutinized provisions that would expand federal civil rights laws more generally, for other protected groups, not just LGBT people. In particular, its Article 208 would operate on the provisions relating to public housing in the Civil Rights Act of 1964 by inserting the following “building rule”:

“A reference in this title to an establishment—

“(1) shall be interpreted as including a person whose operations affect commerce and who is a supplier of a good, service or program; and

“(2) should not be interpreted as being limited to a physical facility or location. “.

In other words, both individual businesses and online services would be defined as public housing for the purposes of the 1964 Act.

Now it can be argued that disability rights laws such as the Americans with Disabilities Act and Section 504 of the Rehabilitation Act are distinct from the Civil Rights Act of 1964, so nothing is compromised except one. principle, if anyone cares. It can also be argued that a far-reaching new federal policy statement that sole proprietors and online-only services should not escape all liability for public housing could sway some judges trying to decide the scope of others. discrimination laws.

By the way, more than 400 major companies have seen fit to approve the Equality Act despite its significant encroachment on economic freedoms, and that number includes several that have been prosecuted in high-profile accessibility cases. from the web.

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Original author: Walter Olson

Original location: Equality Law Could Affect Corporate Defendants in Web Access Lawsuits


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