There have been a number of lawsuits filed testing the accessibility of websites and compliance under the Americans with Disabilities Act (ADA). It is costly for organizations to defend these lawsuits, and especially will be as “tester” applicants muddy the waters. 
Last year after prodding by Congress the Department of Justice’s (DOJ) Office of Legislative Affairs affirmed its long-standing position that websites are places of public accommodation subject to ADA requirements. However, the DOJ provided that website operators have "flexibility" in how to comply and that noncompliance with voluntary technical standards (such as WCAG 2.0) did not necessarily indicate noncompliance with the ADA itself.
The 4th Circuit Court of Appeals has come to the rescue in Griffin v. Department of Labor Federal Credit Union, No. 18-1312 (4th Circuit Court of Appeals, January 3, 2019). Department of Labor Federal Credit Union is a members-only credit union for current and former employees of the Department of Labor and their immediate families and households. Clarence Griffin is a blind resident of Virginia and because of his visual impairment, Griffin uses a screen reader to access the Internet.
Griffin was a “tester.” Griffin is not eligible for membership in the Credit Union. He does not work for the Department of Labor and never has in the past. No one in his immediate family has ever worked for the Department of Labor, nor has any member of his household.
Griffin tried to access the Credit Union’s website in October of 2017. He alleges his attempt was stymied in three ways. First, there were linked images that lacked “alternative text.” As a consequence, Griffin’s screen reader could not describe those images to him, and he could not navigate to the linked content. Second, there were “redundant links.” This meant Griffin had to take additional, unnecessary steps to make full use of the site. And third, “form labels” were missing. Griffin could not tell when the website wanted him to input information that is often necessary to access the site further.
Griffin sued. He claimed that the Credit Union’s failure to make reasonable modifications to make its site accessible to the disabled violated the Americans with Disabilities Act. The case was moved to dismiss for lack of standing, which the district court granted. Griffin appealed. Griffin argued on appeal that public policy requires the lawsuit to continue because the rights of individuals with disabilities to sue for Internet-based harms under the ADA are at stake.
The 4th Circuit disagreed. The court stated that this case concerns the application of a standing doctrine in an electronic age. The court narrowed focus and stated that the only issue is whether Griffin, who is barred by law from making use of the defendant’s services, may sue under the ADA for an allegedly deficient website. The Court stated that Griffin does not have any standing to sue and affirmed the dismissal of this case since he cannot be a member of the credit union. However, the court did not state that any person would not have standing if they were not intending or did not purchase any goods or services from the organization’s website.
HR needs to be on the forefront of the accessibility issue. Anyone can apply for any job at any time on the web. If the person applying meets job requirements of a position posted, the organization may be at risk. ADA career page accessibility lawsuits could proliferate. The Job Accommodation Network (JAN) has a list of accessibility website vendors/consultants that can be used. JAN can provide additional guidance as well.
Source: Steptoe & Johnson LLP 1/14/19