How a non-accessibility case could influence future accessibility litigation
At its core (if you believe plaintiff Hertz) this lawsuit filed in New York federal court (SDNY) is about regular run-of-the-mill crappy software development, bad project management, broken promises, and a complete failure by Accenture to deliver anything at all much less something usable to Hertz despite Accenture collecting $32 million in consulting fees.
So how does this lawsuit, which doesn’t mention the words “accessibility” or “disability” in it anywhere relate to accessibility lawsuits?
Connection #1: New York is the most popular jurisdiction for accessibility lawsuits
If Hertz v. Accenture goes to a written decision, it could provide precedent for what constitutes negligent software development. How bad does it have to be to get a verdict in favor of the plaintiff (or get off the hook) in the jurisdiction where more accessibility suits are filed than any other? Conner v. Parkwood “The Beyonce case” is in the same district as are hundreds of others.
Perhaps an appeals court (since this is certain to be appealed no matter who wins if it does not settle) would even establish a “bright line test” of exactly how to measure negligence with respect to writing software. Under these circumstances, Hertz v. Accenture could influence how an accessibility case would be decided if it were filed in SDNY where WCAG was called out in a contract, but not delivered on.
Connection #2: Hertz was asking for things in its contract that are common to mature accessibility programs
Four of the many things Accenture was supposed to deliver to Hertz under the contract included:
Item 1: Responsive mobile web breakpoints
Responsive mobile web breakpoints is now implicitly required by WCAG 2.1 Level AA 1.4.10 Reflow People with vision loss who don’t use screen readers frequently use plus sized devices. Those wouldn’t have been supported due to the unilateral decision by Accenture to drop that even though it was in the contract.
Item 2: AEM integration for ease of content management and analytics
AEM (or some other content manager) integration is important for sites that have frequent content updates. It means a new ad campaign can be started, for example, without changing any code. This reduces the chance that new coding errors of any type, including accessibility, could be introduced to the infrastructure. It is very quick and simple to deploy a new piece of content through a tool like AEM. It requires a full release cycle and much more QA time to deploy the exact same piece of content without a content manager because the code must be modified to support the new content.
Item 3: Component libraries where Hertz could strip off the Hertz logo and colors and replace with Thrifty or Dollar logos and colors
Component libraries are a key component (the word “fundamental” was used in the Accenture / Hertz contract) of an accessible design system. Like the content manager integration above, component libraries provide IT organizations with operating efficiencies. You can update code in one place and it would automatically apply to all brand variations (referred to in the tech world as “skins”). When the component and skins are deployed, only the first skin needs to undergo heavy-duty, manual, time consuming infrastructure accessibility review. The other skins only need enough testing to validate that the content is correct (for example, that Dollar alt-text and logos announce as Dollar and not Hertz) because the infrastructure code is identical to the one you already tested. Only having to test the infrastructure once is a huge times savings in manual accessibility testing, QA in general, and overall code maintenance.
Item 4: A live, interactive style guide rather than a .pdf doc
An interactive style guide is also a hallmark of a mature accessibility program. Assistive technology works optimally through live interactive components. You cannot implement ARIA code and see how it behaves in .PDF files
Blind people rent cars, even if they (hopefully) don’t drive them. It is not only likely, it is probable, that with a company the size of Hertz, some of their customers use assistive technology to book cars for others to drive. Even if Accenture had managed to deliver something to Hertz that could be deployed, the shoddy job alleged by Hertz, if true, would result in the following problems:
a)The lack of a responsive implementation means that there is no way the resulting website would have complied with WCAG 2.1 Level AA
b) Content updates and deploying brands other than Hertz would have required high levels of maintenance and been prone to introducing new accessibility errors
c) The style guide would not have provided a realistic demonstration of how live components should behave with assistive technology
- Issue A alone would have put Hertz at very high risk of getting sued by one or more members of the public, just like Beyonce’s company was sued over a a completely inaccessible implementation of her site.
- Issues B and C would have cost Hertz much more money to keep their website and mobile deployments accessible, and introduced a higher risk of all types of defects including accessibility-related ones being introduced because of the parallel code streams.
And finally, all three issues combined result in lost business opportunities to Hertz since more time spent on testing and maintenance will take away resources from feature updates.
Of course this is not legal advice :-)
There are things you can do as a purchaser of development services in your contracts to try and protect your organization with respect to accessibility.
- Call out the WCAG standard you are measuring to specifically
- Discuss what Assistive Technologies you expect the software to be tested with
- Discuss whether or not testing using people with disabilities will be done
Warranties, representations, and indemnifications can also be used to reduce risk to the purchaser. I’m not going to tell you how to do those, they are contract-specific and need to be carefully negotiated.
Even with the good case it appears Hertz has on paper, the opportunity costs have been staggering for them.