January 2025 has been tumultuous on so many levels and it was good to have the opportunity to sit down and reflect back. It’s also been sunny up here in the Pacific Northwest, which unfortunately means much colder weather than normal. For us, that means our low temperatures have been dropping below the freezing mark. Now to our accessibility legal update.
Until yesterday, I was convinced that January was a very slow month for web and digital accessibility legal news. Then, I discovered that some of my Lexis alerts had expired. In general, January was a mix of news on both the judicial and legislative fronts.
Providing Accessible Technology Isn’t Enough
On January 17, Magistrate Judge Thomas Hixson for the Northern District of California ordered the County of Alameda to provide assistance and transcriber services for Lisamaria Martinez in completing forms of the County’s Recorder Office. Martinez v. County of Alameda, 2025 U.S. Dist. LEXIS 9686 (N.D. Cal. 2025). County employees refused to assist Ms. Martinez, citing County policy. While the County had made some attempts at making its forms accessible, Ms. Martinez was unable to complete all of the fields on the forms, even though she was a proficient screen reader user and her husband was a software engineer. The County had self-serve kiosks for the public to use in completing its forms when visiting the Recorders Office. In 2022, the County retrofitted these kiosks to include JAWS for its blind patrons; however, the staff was not trained in accessing JAWS for patrons and the main software used for completing the forms was not fully accessible. This was also verified by noted accessibility expert Lucia Greco, who happened to live in Berkeley, which is also in Alameda County. Even though she is an adept computer user, Ms. Greco also testified that, in this case, she would prefer a transcriber over accessing the forms through a computer because of the difficulty in finding the right file and to ensure that the form was properly completed.
The court ruled that the County’s policies of failing to provide a transcriber violated Title II of the ADA. In the common law system that we inherited from England, courts are encouraged to opt for “legal remedies” (notably money damages) instead of “equitable remedies” (like injunctions) whenever possible. While a jury had previously awarded her money damages under California’s Disabled Persons Act and the ADA (because she had proven intentional discrimination), the Court issued injunctive relief and ordered the County to provide transcriber services.
The Martinez opinion provides interesting reading. In the link, I’ve provided a copy of the full opinion from Pacer.
Another Bad Mootness Opinion
In Erkan v. Hidalgo, 2025 U.S. Dist. LEXIS 10404 (E.D.N.Y. 2025), Nihal Erkan sued Dr. David Hidalgo because the doctor’s website was inaccessible. Judge Frederic Block approved the defendant’s motion to dismiss the plaintiff’s lawsuit.
The court noted that Ms. Erkan had not demonstrated a genuine intention to return, as required by the Second Circuit Calcano opinion. Specifically, the court noted that her complaint, “lacks specific articulation as to why Plaintiff was interested in Defendant's particular services, as opposed to those of other plastic surgeons that might have more appropriate specialties or more nearby offices.” Id., at *4-5. Whether you agree with Calcano’s “intent to return” requirement or not, this portion of the opinion is consistent with other opinions from the Second Circuit.
Had the court stopped there, it would have been an unremarkable opinion. The court goes off the rails when it concludes that the case was moot. Specifically, the court noted that the defendant’s consultant had reviewed the allegations in the complaint and had remedied the barriers that were specifically identified (e.g. missing alt text and improperly labeled forms). The court cited no evidence provided by the plaintiff, however, nor indicated whether the plaintiff was even given the opportunity to present evidence on the accessibility of the defendant’s website.
Given the constantly fluid nature of websites and the complexity of web accessibility, courts need to be cautious when dismissing web accessibility complaints on the basis of mootness. Fixing a website is simply not as easy as installing a ramp or eliminating physical barriers. In conclusion, while I don’t disagree with the end result in Hidalgo, I do disagree with some of the court’s reasoning.
Virginia Proposes Changes to its Information Technology Access Act
On January 9, delegates Kathy Tran and Alfonso Lopez introduced HB 2541 to make changes to Virginia’s Information Technology Access Act that would bolster the state’s ability to ensure that its information technology was accessible to its residents with disabilities.
Currently, Virginia’s Information Technology Access Act focuses on the needs of blind and visually-impaired residents. The proposed bill expands the requirements for accessible technology more broadly to include other disabilities.
In addition, the proposed bill seeks to update the state’s procurement processes to encourage vendors to develop the most accessible technology possible for the state. The existing legislation requires that technology either be accessible or adaptable to the needs of blind or visually-impaired users. The proposed bill requires vendors to provide a Voluntary Product Accessibility Template (VPAT) or Accessibility Conformance Report (ACR) prepared by a qualified accessibility expert and that vendors provide a Vendor Accessibility Roadmap that documents its plans for closing significant accessibility gaps, including a timeline for each gap. The proposed bill also encourages (but currently does not require) state agencies to designate a “digital accessibility coordinator” to help the agency develop and implement its digital accessibility policy. I’ve downloaded a copy of the original HB 2541 bill for your reference.
I think that everything proposed in HB 2541 makes a lot of sense. We’ve all seen VPATs and ACRs that were improperly completed because vendors didn’t understand WCAG or accessibility requirements. While HB 2541 doesn’t require that vendors hire third parties to write their VPATs, they should at least make sure that they are prepared by a “digital accessibility subject matter expert with significant experience with product evaluation.” The bill also doesn’t expect perfection as it doesn’t require that all accessibility gaps be closed. I am concerned with the proposed bill is that the requirement for a digital accessibility coordinator is unclear—it could use a bit of beefing up. I also think that the bill should have required an agency rulemaking to help clarify important details (e.g. exceptions). But these are small concerns; in general, I like HB 2541 because it focuses on improving the accessibility of IT products instead of expecting state government to buy accessible products that don’t exist.
New Mexico Expands Digital Accessibility
On January 21, New Mexico proposed a new Accessibility Act. In addition to adding new requirements for built environment accessibility, the proposed law would
- require state agencies websites and mobile applications to comply with WCAG 2.1 A/AA by April 1, 2026,
- post an accessibility statement on agency websites identifying how they will meet these requirements,
- create a new office to educate agencies in digital accessibility and implement the requirements of the Act, including biannual reporting to the governor on digital accessibility implementation, and
- authorizing private rights of action against state agencies for injunctive relief.
Most of the proposed bill mirrors the new requirements in DOJ’s ADA Title II web accessibility regulation. The only new elements are the requirement for an accessibility statement and the creation of an office to help agencies achieve digital accessibility.
Posting an accessibility statement is a great idea and we have always believed that it is critical for helping state and local governments meet the needs of people with disabilities in this digital age. Most organizations fail, however, to fully use their accessibility statement to their full potential because they should also inform the public about how to access agency services, whether digital or not. It would be nice if New Mexico’s new law encouraged agencies to use their accessibility statements in this way.
Creating a digital accessibility office also makes a lot of sense. While DOJ (and notably the Disability Rights Section) has promised to provide more technical assistance about how to comply with its new web accessibility regulation, that information has yet to materialize. Even when it does, however, DOJ attorneys are not IT professionals and don’t have practical skills in helping organizations achieve accessibility. At the state level, however, the Chief Information Officer for the state and at the state agencies have practical skills in achieving important digital initiatives, like privacy and security. Providing centralized, practical guidance at the state level should definitely help.
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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