With digital accessibility lawsuits almost tripling in 2018, organizations are more aware than ever that their digital assets need to be accessible to users with disabilities. But, while organizations may know they need to make consumer-facing websites and mobile apps accessible, all-too-often internal websites and digital resources remain inaccessible to their own employees with disabilities. A recent settlement shows just how much organizations risk when they don’t put the same focus on the accessibility of internal digital resources.
Bartleson v. Miami-Dade County School District
The case, Bartleson v. Miami-Dade County School District, filed in April 2018, was brought by the National Federation of the Blind on behalf of Janice Bartleson, a counselor and emotional/behavioral disabilities clinician who had worked for the Miami-Dade County School District (M-DCSD) for 26 years.
Bartleson and the NFB alleged that M-DCSD used a number of computer systems that were inaccessible to individuals who are blind, preventing her from being able to enter student progress notes, apply for promotions within the school district, or access her employee benefits.
In late February, the parties entered into a consent order, approved by United States District Judge K. Michael Moore of the Southern District of Florida. Under the terms of the settlement, the M-DCSD agreed to make its digital content accessible, as well as pay a total of $250,000 to Bartleson and her attorneys. M-DCSD did not, however, admit liability.
Per the consent order, the M-DCSD agreed to bring its employee-facing technology into compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA success criteria within four years, also the settlement also set out a prioritized accelerated timeline for key digital resources, with a requirement for some documents and websites, including student assessment forms, to be made accessible within as little as three months.
The consent order also requires M-DCSD to build accessibility into its procurement process, both by working with existing contractors to make third-party websites and resources used by the school district accessible, as well as to ensure resources procured in the future are accessible. Per the settlement, M-DCSD is prohibited from knowingly procuring inaccessible websites or programs, and the school district also agreed to include language requiring accessibility into future RFPs and third-party contracts.
Employee-Facing Technology and Title I of the ADA
While the majority of digital accessibility lawsuits have been brought by consumers, the Bartleson case illustrates the very real legal risk organizations also face if they don’t make internal digital resources accessible to employees with disabilities.
Under Title I of the Americans with Disabilities Act (ADA), organizations with 15 or more employees are prohibited from discriminating against individuals with disabilities in the employment sphere. Among other requirements under Title I, organizations are required to provide reasonable accommodations to employees with disabilities, so long as they do not place an undue hardship on the employer.
This often means providing employees with assistive technology, which can include:
- Screen reader software (e.g., JAWS, VoiceOver on iOS)
- Braille terminals
- Screen magnifier software (e.g., ZoomText)
- Speech recognition software (e.g., Dragon NaturallySpeaking)
- Closed captioning
- Computer-aided transcription
- TTY/TDD devices
But, offering assistive technology is not enough by itself. All too often, websites, software, and other digital assets are not created with accessibility in mind, limiting their usability even with assistive technology. A screen reader cannot provide a description of images without alternative text, for instance, just as video playback software cannot provide closed captions if they haven’t been encoded into the video. Something as simple as a PDF can be unreadable by an employee with disabilities if it is not tagged properly.
Because of this—and because entering into a contract that subjects an employee to discrimination is itself a violation of ADA Title I—it is critical to ensure that software, cloud-based SAAS solutions, and other digital content used by employees are either accessible or compatible with assistive technology.
What Happens If Resources Aren’t Accessible?
Employees who believe they have been discriminated against because of a disability can—and do—take expensive legal action against their employers, as the Bartleson case demonstrates. But hers isn’t the only recent case alleging discrimination against employees with disabilities.
Late last year, the National Federation of the Blind brought suit against Epic Systems under Massachusetts state law, alleging the administration-facing functionalities of Epic System’s medical records software were inaccessible to users who were blind or limited vision, contributing to employment discrimination by hospitals and other healthcare providers in Massachusetts. The case was transferred to federal court in late December, where it is currently pending. Interestingly, in that case, the National Federation of the Blind claimed that Epic Systems had made its consumer-facing systems accessible, while leaving the employee interface inaccessible.
In other cases, employees may opt to file a complaint with the Equal Employment Opportunity Commission (EEOC) rather than pursue an ADA claim in federal court. But, EEOC claims (and the lawsuits that grow out of them) can take years—and extensive resources—to resolve. In 2014, for instance, the EEOC filed suit against international shipper FedEx on behalf of employees who were deaf or hard-of-hearing, alleging that FedEx’s training videos did not include closed captioning and that it refused to make necessary modifications so that equipment would provide non-aural notifications. A federal judge rejected FedEx’s motion to have the case dismissed, and it remains in litigation years later.
The Bottom Line
While employment actions under Title I have not yet approached the volume of digital accessibility litigation under Title III, organizations that are not providing accessible solutions to their employees with disabilities are putting themselves at legal risk. Organizations might save money in the short run by ignoring accessibility, but at the cost of major legal headaches down the road.
Are you worried about whether your internal websites and digital resources are accessible to employees with disabilities? Contact Level Access for a complimentary Risk Assessment we can let you know how they are—and aren’t—accessible to users with disabilities, as well as work with you to determine proper next steps.