The podcasting company Gimlet Media now faces a class-action lawsuit for failing to make its podcasts accessible to the deaf and hard of hearing. In the complaint, filed today in New York, plaintiff Kahlimah Jones argues that Gimlet violates the Americans with Disabilities Act (ADA) by failing to provide closed captioning on various podcasts.
As the suit points out, about 36 million people in the U.S. are deaf or hard of hearing; as we know, precisely 99 percent of Americans are making podcasts. Suits against websites under the ADA are common, with 2,256 in 2019, according to the web accessibility law firm Seyfarth Shaw. (Jones has filed over a dozen over the past few years, including against the owner of the site The Street, the online education site SkillShare, Lowe’s, and Peloton.) This is in part because courts still haven’t come to a consensus about how the ADA applies to the web, vacillating over whether a website for a private company constitutes a place of public accommodations and therefore needs to remove barriers to entry, the same way we understand that physical stores should require wheelchair accessibility. Some businesses have tried to argue that websites attached to physical spaces, like restaurants, don’t qualify; two California courts have recently rejected that argument.
Gimlet Media did not immediately respond to Gizmodo’s request for comment.
The Supreme Court got a little closer to resolving the dispute last year, ruling that a plaintiff could sue Domino’s Pizza for neglecting to make its website accessible to blind users. The Los Angeles Times reported that businesses fought hard against the ruling and that the U.S. Chamber of Commerce, as well as groups that said they represented “500,000 restaurants and 300,000 businesses” pleaded with the Supreme Court to shut down the suit, moaning about a potential “tsunami of litigation.”
Establishing and following rules wouldn’t be an impossible task; the federal government (and states and colleges which receive federal funding) has been bound to make electronically transmitted information accessible under Section 508 under the Rehabilitation Act since 1998. They are supposed to meet clear criteria under the Web Content Accessibility Guidelines 2.0, laid out by the Web Accessibility Initiative. One solution is to simply keep accessibility in mind when building a new site; it’s a lot cheaper and easier to build an accessible site rather than retrofitting it later, and in the future, the onus could fall on developers to take responsibility. In an ongoing case, nature enthusiast Brian Bashin sued an IT company that took a $66 million contract from the state of California, allegedly promised to build an accessible website, and didn’t do so.
Covid-19 has drawn more mainstream public awareness to inaccessibility online, with near-total reliance on websites for unemployment benefits and critical health information, compounded by the fact that health information is especially essential for deaf and blind communities who are likelier to be in a higher risk bracket due to related conditions like autoimmune diseases or age.
Businesses, too, have advocated for more clarity, presumably to avoid further litigation. Writing on behalf of businesses in 2018, 103 members of Congress asked then-Attorney General Jeff Sessions to write clear rules in order to put a stop to the “liability hazard.” That year, six Republican senators wrote a similar letter and followed up with William Barr in 2019. The DoJ’s decision to ignore rule-making, for now, might not be so bad, though, given this administration’s empathy deficit.