This Week in Accessibility: People with Disabilities as Whistleblowers

Can people with disabilities sue as whistleblowers when government contractors fail to deliver accessible goods and services? The short answer appears to be yes.

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Golden three-dimensional human cartoon figure blowing into an oversized whistle attached to a neckloop while standing on a gavel pad with a gavel behind it.

The phases of accessibility lawsuits as I see them:

Phase 1: PwDs suing website owners (2006-current)

Phase 2: Employees with disabilities suing employers (2018-current)

Phase 3: PwDs suing Contractors who developed digital properties that should have been accessible, but weren’t (2019)

Less than a month ago, I wrote about a case where Hertz was suing Accenture over Accenture’s failure to create a usable website and mobile app, and failing to deliver items that were specified in the contract. The items Hertz requested are very common requests for companies who wanted to implement accessibility.

This case takes a different approach, but with a similar outcome. First, a couple of short (hopefully understandable) legal definitions:

In Bashin v. Conduent,

  • Plaintiff is blind
  • The State of California contracted with a division of Xerox called Conduent to create a reservations system for the Parks department.
  • The contract between the State of California and Conduent contained multiple references to accessibility
  • Of course, reservecalifornia.com wasn’t accessible, in large part because Conduent only used automated testing plus some checklists. This is just one of the reasons I have a disdain for checklists, read the complete article here.

The reason I seriously doubt Conduent’s claims that they actually ran two accessibility checkers that passed is because one of the allegations in the suit identified:

pages have no titles, have no headings, have unlabeled or mislabeled controls or images, use non-compliant color schemes, or use visual-only challenges

Even the most basic of automated checkers can pick up missing page titles, headings, and unlabeled images and controls. It is probably that underlying reasoning where further along in the lawsuit, Bashin alleges:

Conduent made these statements with actual knowledge that they were false, or acted in deliberate ignorance or with reckless disregard to their truth

In this regard, this case smells a lot like Gomez v. GNC where GNC’s so called accessibility SME “asked a couple of friends and ran an automated test suite” to ensure the GNC site was accessible. Didn’t work out so well for the defendant in that case. In short, this is a case that I really, really would not want to defend.

  • Conduent ran out of time because they left accessibility testing to the end, and
  • Conduent didn’t want to pay the 10K per day in liquidated damages for a late delivery so they short changed even the limited work they had promised to do.

Conclusion

  • Require the vendor deliver printouts of test reports at a minimum (both manual and automated).
  • Consider doing your own testing, which can range from spending a small amount of money to get a crowdsourcing company to have a couple of people with disabilities to do a few hours of testing for you all the way to having a soup-to-nuts audit done by one of the big guns.
  • It won’t take long to figure out if the test results reported by the vendor are fantasy or reality.

3. And finally, never assume that people with disabilities don’t use your goods or services (in this case, parks). That is stupid, discriminatory and offensive — the trifacta of badness.

Written by

Blogger, disability advocate, nerd. Bringing the fire on ableism. A11y Architect @ VMware. Wheelchair user w/ a deaf daughter. CS, Law, and Business background

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