Resolving Disputes Online? Ensure Your Services Are Disability Accessible
6.3.2024
Dispute resolution professionals have increasingly relied on technology to promote and provide services in recent years. COVID-19 accelerated the adoption and reliance on communication technologies like Zoom and Teams, which have been professional lifesavers for many. Although everyone experienced a learning curve, some dispute resolution providers and participants—and especially some persons with disabilities (PWDs)—found the transition more difficult, and sometimes impossible. This brief discussion will explain the need to make our online services accessible to PWDs, identify obstacles commonly encountered by PWDs, and suggest ways to overcome these obstacles. Although much of the following article will focus on website design, please keep in mind that all digital interactions must be accessible including, for example, e-mail messages.
To what degree should we be concerned about digital accessibility for persons with disabilities? Whenever anyone’s access to essential services such as the justice system is diminished or denied we should be concerned. And many may be surprised how many people will be excluded when online services are not accessible for PWDs. In March 2023, the World Health Organization reported that 16% of the world’s population (1.3 billion persons, or 1 in every 6 of us) have a disability.1
Although many may hope that dispute resolution will return to the primarily in-person model that preceded the pandemic, that is wishful thinking. Some services that were offered only online during the pandemic may rarely, and perhaps never, be available again in person. Although this is certainly beneficial for some, PWDs, persons with limited financial resources, and individuals living in rural locations are at risk of being excluded from the “new normal” digital world if care is not taken to make certain that new reality is accessible.
There are at least three reasons why individuals or entities operating online should make their websites accessible to PWDs. The first-mentioned might be considered altruistic, while the other two primarily benefit the service provider or website host.
First and foremost, accessibility is a human right. The United Nations Convention on the Rights of Persons with Disabilities promotes, protects and ensures the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, as well as promoting respect for their inherent dignity.2 Article 9 declares that “States Parties shall promote access for PWDs to new information and communications technologies and systems, including the internet.”3 Article 13 explains that “States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations.”4
Second, recognize that universal design (i.e., making online services accessible to all potential users) is good business. Universal design requires equitable use, flexibility in use, simple and intuitive use, perceptible information, tolerance for error, low physical effort, and size and space for approach and use (regardless of users’ body size, posture, and mobility).5 These seven principles have obvious relevance for persons with disabilities. Importantly, adopting universal design will increase your user satisfaction as well as expand your user population beyond persons with disabilities. Video with captions will help anyone who operates in a noisy environment, for example. And people with limited bandwidth will appreciate well-designed, uncluttered websites. Companies without accessible websites are estimated to be losing $6.9 billion a year to competitors whose sites are accessible.6
Third, online services that are not accessible for PWDs may give rise to claims, and potential liability, under Title II of the Americans with Disabilities Act (Public Services) or Title III (Public Accommodations and Commercial Services).7 The question of legal liability under the ADA demands its own law review article. For our purposes, note that a private provider who is sued under ADA Title III is not liable for compensatory damages. Successful plaintiffs can, however, recover attorney fees, and as explained below, this has encouraged controversial litigation. Additionally, a minority of states do allow compensatory damages as well as attorneys’ fees.8
Currently some prospective plaintiffs are surveying the internet and testing websites for accessibility. If they find arguable federal or state law disability accessibility violations, they demand a settlement. Because the only possible ADA money damages for private service providers is attorney fees, the apparent goal of some plaintiffs is to receive a quick settlement from a defendant who determines the settlement demand would cost it less than it would to defend an ADA case.
Plaintiffs filed more than 4,000 ADA-based lawsuits against websites and apps in 2021 and 2022.9 New York has become a hotbed with 312 ADA federal court lawsuits filed in October 2023 against websites, mobile apps and video content.10 Designing your website to be disability accessible from the outset may be your best protection from these claims.
There are numerous simple modifications that will increase digital accessibility for persons with disabilities. But before we begin that more specific discussion, the author has one recommendation that assuredly will increase accessibility and a second recommendation that will protect party autonomy while we are making changes to improve accessibility.
The first recommendation is easy to accomplish but often overlooked. When trying to determine whether your online services are accessible for persons with disabilities, use human testers. You already may know PWDs who are willing to test your website to determine whether it truly is accessible. If not, you can contact local or national disability organizations such as the National Federation for the Blind and ask whether someone from their organization would be willing to test your website. Disability and support organizations are very interested in ensuring digital resources are accessible and will work with you to improve accessibility, often at no cost. It can provide credibility for your representations that your services are accessible, and it also may also lead to other previously unrealized collaborative opportunities.
Second, when offering dispute resolution services online, recognize and respect PWD’s autonomy and ability to make their own choices about whether they are able to use the system. Someone could have challenges reading text or seeing images on a computer or smartphone, for example, but may have a spouse or friend who can help them when it comes to online interactions. Or they may use assistive technologies like a screen reader that makes it possible for them to interact effectively online. Dispute resolution practitioners need to offer parties a confidential, voluntary opportunity to disclose disability limitations, and should allow the individual to decide whether they are able and want to use your online services.
A more technical (and perhaps challenging) way that dispute resolution service providers can improve accessibility of their online services is to follow the Web Content Accessibility Guidelines (WCAG).11 The Guidelines are not, however, what one might call an “easy read.” Yet it is important to understand that they represent a shared international standard establishing success criteria that can eliminate many of the barriers that PWDs face interacting with a website or other digital technology. To make the substantive content more understandable, significant summary material is available.12 In the authoring organization’s own words: “WCAG is primarily used by web content developers (authors, designers), web authoring tool developers and web accessibility evaluation tool developers. However, understanding and conforming to the WCAG standards has become a necessity for any business or organization operating a website. If your website is not accessible, you risk legal retribution.”13
The Guidelines have evolved over time. WCAG 1.0, which had 14 guidelines and three increasingly demanding compliance levels (identified as A, AA, AAA), was released in May 1999. Regarding the compliance levels, A represents bare or minimum conformance and may not meet legal requirements, AA is mid-range, and AAA is the highest (which may not be achievable for all content). WCAG 2.0 was published in December 2008, introduced the idea that there are four general requirements for disability accessibility (digital material must be perceivable, operable, understandable, and robust), and further developed the three A, AA, and AAA compliance levels. WCAG 2.1 was published in June 2018 and introduced requirements directed specifically at mobile devices or tablets. It also announced 17 new success criteria. WCAG 2.2 was released October 5, 2023, with nine additional success criteria.14 Subsequent versions do not replace previous versions but instead provide additional guidelines.
Examples of WCAG success criteria that are easily achievable include: providing descriptive alternative text (ALT text) for images, allowing online text to be magnified without disrupting page design, ensuring that information entry forms and tasks do not have fixed time limits for completion that may not accommodate PWDs who may need more time, designing web pages so that components like headers and footers consistently appear in the same location on all pages, permitting users to navigate with the keyboard rather than only with a mouse, and testing to make certain that screen readers can navigate the site.15 Helpful checklists are available to determine whether your online content satisfies WCAG criteria.16
Although the WCAG Guidelines are not legal requirements, courts and legislatures have adopted them as the appropriate legal standard. For instance, the United States Department of Justice (DOJ) is revising its ADA Title II disability accessibility technical standards for state and local governmental entities. It proposed a private accessibility standard for web access, which is the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA and comments were due October 3, 2023.17
This author recommends best practices that include appointing a dedicated digital accessibility coordinator, including accessibility requirements in all of your technology contracts and even your requests for proposals (RFPs), placing an easy to find accessibility information link on every webpage, not relying only on color for website navigation, continuously training staff, using human testers and consulting organizations (for instance WAVE, Accessibleweb, UsableNet, WebAIM, AudioEye, and accessiBe), make accessibility part of job descriptions and evaluations, and review relevant legislation. Dispute resolution solution providers and practitioners should also become familiar with online dispute resolution standards and guidelines promulgated by the National Center for Technology and Dispute Resolution/International Council for Online Dispute Resolution18 and the American Bar Association.19
Online dispute resolvers can improve their digital accessibility by becoming familiar with the WCAG and its supporting documents, using human testers and contacting available consulting organizations, reviewing compliance checklists that are available for free online, and following best practices. By doing so we can achieve equity and inclusion goals, increase access to justice, and expand our businesses.
David Allen Larson is past chair of American Bar Association Section of Dispute Resolution, Professor of Law at Mitchell Hamline School of Law and Senior Fellow, Dispute Resolution Institute.
Endnotes
