Blind Workers Test Limitations of Online Hiring Systems (1)

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By Patrick Dorrian

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 take 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.

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