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From the business desk team
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Blind Workers Test Limitations of Online Hiring Systems
By Patrick Dorrian
Bloomburg, Aug. 21, 2018
Hard Rock Cafe. GameStop. Dart Container. Albertsons. What do the
theme-restaurant chain, gaming
retailer, foam cup maker, and grocery store chain have in common? All are
accused of having online job
application systems that blind workers can’t access fully.
And all four companies face lawsuits in California federal court alleging
discrimination against blind and
visually impaired job seekers at the very outset of the job search process.
And they’re not alone. Since
April, seven other employers have similarly been sued under California law
in state court.
The cases draw attention to “huge” problems for many visually impaired
Americans: accessing online job sites and unemployment, the American
Foundation for the Blind’s
Megan Dodd told Bloomberg Law.
Nearly six out of 10 blind and visually impaired Americans are unemployed,
Dodd said. Many factors are
to blame, but a leading one is that these workers can’t make full use of
employers’ online hiring systems,
said Dodd, the director of AFB’s Center on Vision Loss.
How many employers don’t have fully accessible online job application
systems? One of every four is a
good “rough estimate,” Professor Peter Blanck of Syracuse University told
Bloomberg Law. Most Fortune
500 and other large employers have fully functioning job sites, so the
problem is usually with smaller
employers, he said.
But it isn’t clear whether authority exists for holding a company
accountable when not all job seekers
are able to immediately access all aspects of its online jobs page,
management-side attorney Minh N. Vu
said.
Employers’ legal liability is “untested,” she said. At the same time,
“litigation is expensive and
uncertain.” It can make more sense simply to cure the accessibility issue,
she said. Vu is with Seyfarth
Shaw LLP.
The lawsuits involve “the intersection of technology and civil rights,”
attorney Scott J. Ferrell told Bloomberg Law. Ferrell is lead counsel for
the workers in the lawsuits, all of
which are represented by Pacific Trial Attorneys.
Many of the public accommodation cases have settled as “most companies have
done the right thing
and changed their practices,” he said. Employers that don’t update their
jobs sites risk potentially
significant damages at trial.
“I’ve found these cases resonate well with most jurors,” Ferrell said. Jury
awards for employment
discrimination “routinely exceed $1 million,” he said.
More Suits Coming
The lawsuits against Hard Rock Cafe International (USA) Inc., GameStop Inc.,
Dart Container Corp., and
Albertsons LLC were all filed in the U.S. District Court for the Central
District of California. They allege
the companies’
jobs pages aren’t designed to be fully accessible to visually impaired
workers who need screen-reader
software to navigate internet sites.
In each case, the job seekers only sued after first asking the employer on
three separate occasions to fix
its site and receiving no substantive response, the lawsuits say. By not
acting, each company violated its
obligation under California’s Fair Employment and Housing Act to reasonably
accommodate disabled
workers after initially failing to at least discuss potential solutions with
the job seekers and their lawyers,
according to the lawsuits.
Newport Beach, Calif.-based Pacific Trial Attorneys has filed seven similar
employment cases in
California state court against Owens Corning, Michael’s Stores Inc., First
American Financial Corp., Los
Angeles World Airports, Agilent Technologies Inc., The Servicemaster Co.,
and Herbalife International of
America Inc. It also has brought dozens of lawsuits under the public
accommodation requirements of
disability rights laws challenging the general usability of companies’
websites by the blind and visually
impaired.
California’s Fair Employment and Housing Act, unlike the federal Americans
with Disabilities Act, also
provides for monetary damages for failing to accommodate and failing to
discuss potential
accommodations with workers.
“Because the ADA does not provide for monetary damages, claims for damages
under state laws usually
motivate companies to do the right thing in a way that ‘pure’ ADA claims
(which can only seek an
injunction) do not,” Ferrell told Bloomberg Law.
More lawsuits will soon be filed against employers in Virginia and Florida,
Ferrell said.
Bloomberg Law reached out to each of the 11 companies. Six declined to
comment on the lawsuit
against them, citing the pending nature of the litigation. Four companies
discussed their accessibility
programs, and Michael’s Stores added that it believes the case against it
“is without merit” and that the
company will “defend it vigorously.”
Federal Law Murky
There is no clear basis under current federal law for holding employers
liable for website accessibility
issues, Vu said. The guidelines cited by Pacific Trial Attorneys in the
lawsuits are a set of international
rules that aren’t binding on most U.S. employers, she said.
But those rules version 2.0 of the Web Content Accessibility Guidelines are
the only real guidance “out
there” at the moment, Vu said. The U.S.
government has made WCAG 2.0 mandatory for government agency websites and
various other
countries have taken similar steps. “It’s become the de facto standard and
has been cited by” the U.S.
departments of Justice and Education, she said.
U.S. agencies that enforce workplace discrimination laws haven’t taken a
hard line on the issue, Vu said.
The Labor Department’s Office of Federal Contract Compliance Programs, which
has enforcement
jurisdiction over government contractors, says only that there may be a
benefit to having online job
sites that are fully accessible to as many disabled applicants as possible.
The Equal Employment
Opportunity Commission, which watches over private businesses, “has been
quiet” on the subject apart
from issuing an informal opinion letter in 2003, Vu said.
The province of Ontario, Canada, is the only place where the guidelines are
also mandatory for large
private-sector employers, she said.
Private-sector employers may be able to argue that they’ve met their
obligations under federal law if
they can show they’ve included on their jobs portal a statement indicating
that blind and visually
impaired applicants can contact the company for help with any accessibility
problems, Vu said. But any
procedure the employer provides for seeking assistance with jobs-page
accessibility would have to
comply with the reasonable accommodation process called for under the
employment provisions of the
ADA, she said.
Albertsons told Bloomberg Law it “has a practice of interacting with
individuals with disabilities, whether
in person or online, to identify and provide reasonable accommodation during
the employment
application process.”
Michael’s Stores similarly touted it’s “robust accommodation process” and
ready provision of reasonable
accommodations to job applicants in need.
Awareness and Inclusion
Intentional bias likely isn’t behind the accessibility problems blind and
visually impaired workers
applicants face, Dodd of the American Foundation for the Blind and others
told Bloomberg Law.
“I think it’s a lack of awareness in most situations,” Dodd said.
“Attitudes about inclusion is the real problem,” Blanck said. Jobs-page
“accessibility is just a symptom.”
Blanck is chairman of Syracuse’s Burton Blatt Institute and the author of
several books on disabilities
laws, including e-Quality: The Struggle for Web Accessibility by People with
Cognitive Disabilities.
Dodd said the AFB is teaming with the federal government’s AbilityOne
Commission and others on a
project that may provide some answers on the extent, causes, and potential
fixes for the jobs-page
accessibility issue and other employment barriers blind workers face.
Fix Is Low-Cost but Not Always Easy
Ferrell said fixing website accessibility issues “is quick and easy” and
typically takes only an investment
of a few hours and a few hundred dollars.
But the solution isn’t always that easy, according to Vu.
Most employers use third-party vendors to build their sites. The vendor may
be reluctant to make
changes, especially to the sort of off-the-shelf products smaller employers
purchase, she said. Employers
often lack any leverage to force a vendor to redesign a jobs page, Vu said.
Indeed, the Hard Rock Cafe said it’s been working with an accessibility
consultant for several years, “well
before this lawsuit was filed.” The company had already “implemented the
relevant portions of the
World Wide Web Consortium’s Web Content Accessibility Guidelines,” putting
it in compliance with the
ADA, a company spokeswoman said.
Owens Corning told Bloomberg Law it utilizes a combination of “internal and
third-party resources to
develop a state-of-the-art user interface, which continues to improve for
all users, including those with
visual impairments.”
Employers should explicitly state when retaining a third-party platform
provider that the site the vendor
is contracting to deliver will be fully accessible to blind, visually
impaired, and all other job seekers, Vu
said.
Better yet, enforcement authorities should adopt clear-cut regulations
requiring platform providers to
meet WCAG 2.0 or similar standards, she said.
The continued lack of mandatory design and implementation rules is “to the
detriment” of companies
facing potential liability under employment and public accommodations laws
as well as the people those
laws are meant to protect, Vu said.
https://www.bna.com/blind-workers-test-n73014481885/
