Lack of Clarification from Federal Government Creates Confusion
By Elizabeth Hans McCrone
When Scott Osborn, owner of Fox Run Vineyards near Seneca Lake in upstate New York, first heard that winery websites should be addressing the needs of visually impaired people last October, he said he and his team immediately began to work on “getting our site up to standard.”
In January he got sued.
And his business wasn’t the only one.
According to the New York Wine and Grape Foundation, last fall, 26 wineries from Long Island and the Hudson Valley were named in a class action lawsuit and another 12, including Fox Run Vineyards, in January for “ … failure to design, construct, maintain and operate its website to be fully accessible and independently usable by (Plaintiff) and other visually impaired people.”
At issue is Title III of the Americans with Disability Act (ADA), which applies to private businesses. The intent of the Act, signed into law by George Bush in 1990, is to ensure that individuals with disabilities have equal access, opportunity, participation, independence and economic self-sufficiency as individuals without disabilities. (https://ag.ny.gov/civil-rights/disability-rights).
When first enacted, the law was primarily directed at businesses in buildings that lacked adequate provisions for people with physical handicaps who might be unable to access steps or navigate narrow corridors and doorways.
But with the rise of the Internet in the 21st century and society’s reliance on it to conduct nearly all aspects of contemporary commerce, Title III of the ADA has been extended to website development as well.
There’s little controversy about the intent of the law and its basic premise. As Osborn puts it, “I want everyone to come to my winery and access my website. I want to achieve as much as I can. The problem is, there’s not much information available as to how to go about it. ”
The sticking point appears to be a lack of clarity from the federal government as to what exactly defines website accessibility for the visually impaired and what those businesses that have been found to be out of compliance need to do to fix it.
James Marshall Berry is Chief Strategy Officer with JMB Web Consulting, LLC based out of Sonoma County. He works with a number of winery clients who have serious concerns about the compliance issue and how address it.
Berry contends that since the Department of Justice (DOJ) has declined to be specific about issuing any official website compliance guidelines, small businesses are scrambling to define their own best practices and the actual decisions about compliance are coming down from individual courtrooms where the cases are being litigated.
“We all would like a standard of measure that tells us is it or isn’t it compliant,” Berry asserts. “But if it’s up to a judge and jury to decide what’s good enough – that has sweeping ramifications.”
Berry says that many wineries and small businesses are turning to website accessibility practices that were developed in 1999 by the World Wide Web Consortium (W3C), an international community where “member organizations, a full time staff and the public work together to develop web standards.” (https://www.w3.org/Consortium/).
Under the W3C, a workgroup came up with an initial list of 14 standards and checkpoints, known as the Web Content Accessibility Guidelines (WCAG 1.0) that could be followed in order to make the Internet more accessible to people with disabilities.
In 2008, those guidelines were updated (WCAG 2.0) to reflect the ever-evolving nature of technology, and focused more on “principle-centered guidelines,” rather than the “technique-centered guidelines,” which made up the bulk of the earlier work. (https://webaim.org/standards/wcag/).
However, as Berry points out, “It can be as arbitrary as contrasting colors on a logo, or one color of orange being brighter than another … at the end of the day, it’s going to fall to CMS (Content Management System) to become compliant. And, were winery websites originally built that way? Not really. Do they have the money to fashion their websites to facilitate compliance? Probably not, but it will likely be cheaper than a lawsuit.”
Richard J. Idell is an attorney with Dickenson, Peatman and Fogarty, a law firm in Napa CA, with extensive experience representing wine industry concerns. He is also an entertainment lawyer, specializing in live performances and has significant experience with ADA issues.
Idell agrees that it can be frustrating for wineries and other small businesses to be subject to lawsuits without clear Justice Department guidelines. But, as he points out, “the fact that there are not clear guidelines on the issue doesn’t mean you shouldn’t fix it.”
Idell references the WCAG 2.1 standards for website development guidance that suggest, among other things, installing software with alternative text that contains a code that describes images on a page, or screen reading software that does allow the visually impaired to read online content.
He notes that the risk of damage awards and attorney’s fees is significant and a good reason to address the problem, even without clarity from the Justice Department.
“This will all get sorted out eventually,” Idell predicts, because, as he says, the litigation will result in decisions where the courts say what is covered in the law and not. “When the law was passed, Congress saw the best way to get a law implemented is have attorneys bring cases for private litigants. That is why you have private individuals filing suit.”
For their part, winery owners like Scott Osborn are doing their best to cope with an ever-shifting legal and technical landscape. Under his direction, Fox Run Vineyards has completely rebuilt its website, with assistance from the Center for Disability Rights in Rochester New York.
Osborn hired User 1st, a company specializing in website accessibility. At the top left on the Fox Run Vineyards homepage, there is now an Accessibility tab. When activated, users may choose among several options to address accessibility needs, including activating a screen reader, navigating by keyboard, changing color contrast, making a grayscale and stop moving elements.
“It took us three to four months to get this thing done and done correctly,” Osborn reports. “People who don’t have (disability) issues – we don’t think about it. And we should. We just need a way to think about it without having a lawsuit.”
Sam Filler, the Executive Director of the New York Wine and Grape Foundation, could not agree more.
“No one is intentionally trying to limit access,” Filler states. “The problem is with the rules not being clear. Even if you’ve followed best practices and WCAG 2.0, it doesn’t absolve you from a lawsuit. You could be 98 percent there, but one photo that wasn’t accessible can bring up a complaint.”
“Bigger companies have the resources to settle (lawsuits),” Filler continues. “For smaller wineries a settlement and the money to fix a website can mean their yearly marketing budget.
“There needs to be breathing room so wineries can become compliant. Our industry is totally committed to providing appropriate disability access. If it’s not there, our winery owners are committed to making the appropriate improvement.”