This week in Accessibility: Gomez v. GNC

Multi-colored pills

Gomez v. GNC should serve as a warning to any company facing an accessibility lawsuit as to the importance of their accessibility experts actually being experts in accessibility. This case started as many digital accessibility lawsuits do:

1. Person with Disability can’t use website to complete business transaction (in this case, the PwD was blind and trying to use JAWS to find a store, buy something online, etc.)

2. Plaintiff files class action lawsuit asserting various ADA violations committed against a group of plaintiffs in the same situation they are in.

Class action lawsuits, when they go to trial, are usually referred to by attorneys as the “battle of the experts.” The plaintiffs’ expert says one thing, the defendant’s usually says the complete opposite, or at the very least contradicts the plaintiffs’ expert wherever they can. This is where Gomez v. GNC went off the rails.

In a classic example of the Dunning-Kruger effect, GNC’s IT executive attempted to testify as an accessibility expert in this case. His sole basis for claiming this expertise was having talked to some folks and having run the site through two free online tools that returned zero errors. I personally find the later statement suspicious, having NEVER had a free tool run return zero errors on anything I ever ran. Automated accessibility tools, especially free ones, are notorious for false positives. There are three reasons why you can never, EVER rely on automated accessibility tests as the only component of your accessibility practice:

1. On a good day, automated tests only cover about 30 % of the WCAG accessibility success criteria.
2. Automated tests can’t run on mobile devices. Mobile web (which is hopefully responsive) must always be tested independently, and must always be tested manually with screen readers.
3. People with vision loss don’t analyze code, they use screen readers. The only way you know with 100 % certainty what they are experiencing with your website is to have a human test it with a screen reader.

Fortunately, the judge saw through the defendant’s claims. She decided that he was not an expert under a legal review known as the Daubert test, stating in the written ruling that GNC’s IT exec was not even minimally qualified to provide an expert opinion on web accessibility.

The judge granted the plaintiffs’ motion for summary judgment and struck the GNC expert’s testimony. That means she basically said “I don’t need to hear any more. Plaintiff wins.” That is really really rare, though it does happen occasionally, more often when the defendant is requesting the motion for summary judgment, almost never when the plaintiff requests it. And I can’t tell you a single time when the plaintiff has been granted a motion for summary judgement in an accessibility class action lawsuit. For the judge to have done this, she had to come to the determination that if every single fact was decided in favor of the defendant (GNC), that Gomez (the plaintiff) would still win. It is really hard to screw up so badly that this happens, but GNC seems to have found a way, and that road was paved by using an expert who wasn’t an expert.

Being an accessibility expert requires a LOT more than chatting with a few friends who may (or may not) know something about the topic and having someone else run a couple of free tools. I wrote an article a couple of months back detailing a comprehensive list of actions that an aspiring accessibility expert should consider undertaking. In short, they include: attending meetups and camps, webinars, formal training, and conferences, learn to use assistive technology, getting IAAP certified, and volunteering for disability-related causes. Being an accessibility expert requires an in-depth understanding of assistive technology, AT-friendly coding practices, and how people with disabilities use AT.

GNC could have looked at People with Disabilities as a business opportunity, and instead they ignored them. The number one requirement of being a good accessibility manager is giving a damn. Hopefully GNC finds someone willing to take the job, and hopefully they don’t report to the executive who thought they knew everything they needed to know.