Expert Witnesses in Web Accessibility Cases (Part 2)

In order to bring a case in Federal court, Article III of the Constitution requires that the plaintiff must met the minimal requirement of standing to sue. In its broadest sense, this requires that (1) the plaintiff suffer an actual or perceived injury, (2) the injury can be fairly traced to the defendant's illegal conduct, and that (3) this injury can be redressed by the court if the relief is granted. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982).

That sounds pretty abstract so let's make it a little more tangible. Say a blind plaintiff is suing a retailer for its inaccessible website. If he goes to the website and can't order a product because the product page is inaccessible to their screen reader, he may be able to meet the requirements of having standing to sue the retailer. Why? Well, he would allege that he has suffered an injury in not being able to purchase goods online like a non-disabled person. This meets the first requirement of standing. Then, to meet the second requirement for standing, he would allege that the defendant created or controlled the (inaccessible) website so his injury could be traced to the defendant's conduct. To meet the last requirement, he would note that the Title III of the ADA (and possibly Unruh, if he was a California resident) prohibit this conduct and that a court can award injunctive relief and, in the case of Unruh, monetary damages to compensate him for his injury.

I think that the requirement for the plaintiff to suffer an injury takes an interesting turn in web accessibility cases because it really hinges on the nature of the plaintiff's disabilities. And this affects a lot of the issues that a plaintiff can allege in their complaint-- and what their expert witness can testify about. To take an obvious example, a blind plaintiff who does not have a hearing disability cannot bring a claim because a company did not include captioning on its videos. Why? Because lack of captioning would not affect the experience of a blind visitor to a website. Sure, there may be problems with the videos that would affect him-- such as lack of audio descriptions or the use of a video player that lacked keyboard accessibility. But lack of captioning alone should not affect a blind plaintiff so this should not be something that they can allege in his complaint. No harm, no foul.

But a less obvious example would be something that I see all the time in web accessibility complaints by blind plaintiffs-- allegations of low contrast or other deficiencies that affect low-vision users. Blindness and low-vision are, of course, related disabilities and, in the physical world, many of the issues that confront low-vision users also affect blind users. When we move to digital accessibility, however, this connection breaks down as the features that affect low vision users can be very different than blind users. For instance, low-contrast (WCAG Success Criteria 1.4.3), reflow (WCAG Success Criteria 1.4.10), or text spacing (WCAG Success Criteria 1.4.12) all have a big impact on low vision users with particular vision impairments or who rely on screen magnification, but these issues would likely not affect a screen reader user. So, again, a blind plaintiff would have trouble alleging that they suffered harm because a web page affected low-vision users. As an aside, I'd go so far as to say that the differences between the needs of blind users and low-vision users are sufficiently large that I think a good argument could be made against any class certifications between blind and low-vision users in a typical web accessibility cases-- but that's the subject of a future blog.