Overlay Fails in Lawsuit Test: Website Accessibility Settlement Speaks Volumes

Editor’s note: This post is from eSSENTIAL Accessibility, which has since merged with Level Access. Since the publication of this post, Level Access has closely monitored the advancement of overlay technology capabilities. Our position on these tools has evolved based on many factors, including the impact of artificial intelligence (AI) on automated remediation. Our current perspective is captured in our blog post, Our Perspective: Digital Accessibility and Overlays.

After eight months of litigation, a digital accessibility case, Murphy v. Eyebobs, appears to be settled. In the case, the plaintiff, Anthony Hammond Murphy, sued Eyebobs, LLC, citing its “failure to make its digital properties accessible to blind individuals, which violates the effective communication and equal access requirements of Title III of the Americans with Disabilities Act.” The website used overlay provider accessiBe as its accessibility solution.

The end result? In a proposed settlement agreement, the owner of the website has now agreed to an extensive accessibility program with mandatory reporting. The owner is also required to pay $16,000 in legal fees for the plaintiff, in addition to the cost of mounting their defense.

These trends in case law carry significant weight when it comes to the enforcement of digital accessibility. They also caution against approaching the problem with an incomplete solution.

In this post, we dissect the initial complaints specific to the use of an overlay, review the highlights from the proposed settlement, and outline key takeaways for every website owner considering an accessibility solution.

Claims

The inaccessibility claims made by the plaintiff are quite lengthy, so we’ve provided an excerpt of each followed by a quick summary:

Claim 1

“Defendant installed a low-cost overlay on the Digital Platform developed by a company called accessiBe. accessiBe claims this overlay can automatically bring a website into compliance with the ADA by resolving the website’s underlying accessibility issues. Unfortunately, the overlay fails to provide screen reader users, including Murphy, full and equal access to the Digital Platform.”

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Quick Summary

The overall general claim: the overlay doesn’t provide full and equal access to screen reader users.

Claim 2

“…the accessiBe overlay makes it impossible for some screen reader users to access the Digital Platform after they visit Defendant’s Accessibility Statement. …Because screen reader users, including Murphy, are likely to become stuck so soon after arriving to Defendant’s online store, this accessibility barrier has a particularly deterring effect on their future use of the Digital Platform.” 

Quick Summary

The overlay causes screen reader users more problems. In this case, they become stuck when navigating from the site’s accessibility statement.

Claim 3

“The Digital Platform prevents screen reader users from accessing some primary content. For example, when consumers visit the Digital Platform from a new IP address, Defendant displays a pop-up window inviting them to ‘[e]njoy 10% off your next purchase. Offer ends soon.’ Unfortunately, Defendant does not alert screen readers of this pop-up window… As a result, it is impossible for Murphy to perceive this promotion independently, the effect of which would require him to pay more on his order than consumers who do not use screen reader technology to shop online.”

Quick Summary

Without proper accessibility remediations, screen reader users are not alerted to a promotion that pops up on the website, resulting in an unequal online experience.

Claim 4

“The Digital Platform does not provide a text equivalent for non-text elements.” For example, the Digital Platform provides a five-star rating for many products that Defendant sells. Consumers who perceive content visually can see whether a particular product has one, two, three, four, or five stars, and base their purchasing decisions on this information. Unfortunately, Defendant’s accessibility policies fail to provide sufficiently descriptive alternative text for this important rating information. To this end, screen readers do not provide any audio information for the stars on the Digital Platform because screen readers skip this content entirely. As a result, Murphy must make his purchasing decisions without the benefit of knowing whether the products he’s researching are well received by other consumers.

Quick Summary

Screen reader users are not able to access non-text content because text alternatives are not provided. This results in an unequal shopping experience for screen reader users.

Settlement Terms

The terms contained within the 30-page, multi-year proposed settlement are extensive and reflect the need for a comprehensive approach to accessibility. We’ve highlighted the primary requirements the defendant has agreed to:

Maintain Accessibility Coordination Team

Eyebobs shall maintain an Accessibility Coordination Team at least through the agreement term, possibly longer.

Retain Accessibility Consultant

Within six months of the effective date of the settlement agreement, Eyebobs is required to retain an accessibility consultant who is knowledgeable about digital accessibility and the ADA (if it has not already done so). Eyebobs also has to inform the plaintiff of its selection of an accessibility consultant.

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Complete Accessibility Audit

Within nine months, Eyebobs must complete an accessibility audit of its site.

Develop Accessibility Statement

Within nine months, Eyebobs has to develop an accessibility statement.

Implement Accessibility Strategy

Within 18 months, Eyebobs is required to develop and implement an accessibility strategy, incorporating detailed steps into its accessibility policies and practices to ensure its digital properties become and remain accessible.

Employee Training

Within 18 months, Eyebobs has to train all employees responsible for website and mobile application design, development, and maintenance to ensure future design, development, and maintenance are accessible and remain accessible.

Prioritize Bug Fixes

Within 18 months, Eyebobs must make “reasonable efforts to modify existing bug fix policies, practices, and procedures to include the elimination of bugs that create accessibility barriers, including those that create nonconformance with WCAG 2.1.”

Accessibility Support

Within 18 months, Eyebobs has to provide support during regular business hours to help individuals who are blind or have visual impairments resolve accessibility issues they may encounter.

In addition to these stipulations, Eyebobs must report on its progress and is subject to monitoring.

Key Lessons

Making your digital experiences accessible is essential in order to provide full and equal access to your users. Not only is it the equitable choice, it’s a requirement in many global laws. And, as evidenced by this latest settlement, trending in case law continues to validate that the ADA applies to digital experiences. If yours is not accessible, your organization may be the target of a lawsuit.

As the Eyebobs lawsuit demonstrates, overlays are wholly insufficient solutions for ensuring digital accessibility.

Taking a proactive, multi-faceted approach to accessibility will ensure your experiences are inclusive, and reduce your legal risk.

A comprehensive approach

eSSENTIAL Accessibility partners with organizations, providing this multi-faceted approach. Our solution combines automation with manual testing and auditing, ongoing technical training, and legal support. It’s Accessibility-as-a-Service in a fixed annual fee. Request a demo today.