On Dec. 13, a blind Manhattan resident named Henry Tucker filed federal lawsuits against 10 art galleries, saying their websites were not accessible to people who could not see. The galleries’ names included Adam Baumgold Fine Art, Adelson, Agora, Albertz Benda and Acquavella.
The next day, Mr. Tucker and his attorneys moved on to the B’s.
For decades, lawyers for the disabled have used the Americans With Disabilities Act to force businesses to make their spaces more physically accessible, by adding ramps, widening doorways or lowering countertops.
But the steady migration of commerce and culture to the internet has given rise to a new flood of litigation, over the accessibility of websites to the visually impaired. The number of such lawsuits nationwide nearly tripled in 2018 over the year before.
The businesses being served with website-access lawsuits include moving companies, colleges, insurance companies, sightseeing tours, restaurants and yoga studios. Representatives of practically every sector of the economy have been called to task, from the fashion company Anna Sui to Playboy.com to SoulCycle to Zachys Wine Auctions.
Depending on one’s perspective, the suits are either salvos for civil rights or a way for lawyers to scrape the internet for a quick paycheck.
“It’s blackmail, that’s really what it is,” said Mark Borghi, the owner of Mark Borghi Fine Art, who was sued in the “M” batch.
The two New York lawyers who are suing the galleries, Joseph H. Mizrahi and Jeffrey M. Gottlieb, are among the most prolific in the country in this field, according to a survey of federal court filings by the international law firm Seyfarth Shaw, which defends businesses. The two lawyers have filed reams of complaints against other companies, too, including CorePower Yoga, the Honey Baked Ham Company and Camp Bow Wow Franchising, a day care for dogs.
In an interview, Mr. Gottlieb said he and Mr. Mizrahi “vehemently disagree” with the suggestion that these lawsuits are designed extract money from defendants.
“This law has been around for a long time, and just like any other law, you can’t plead ignorance as a defense,” Mr. Gottlieb said. “They knew they should have fixed the websites,” he added. “But we find that once you have a lawsuit, that’s when they fix their websites.”
Their motives notwithstanding, the lawsuits expose what advocates for the blind say is a real problem: Many websites remain unusable to the visually impaired, even if those people equip their devices with software and hardware adapted for that use.
“Think about your own daily life and how much you use the internet,” said Chris Danielsen, the director of public relations at National Federation of the Blind, and a blind person himself. “And then imagine almost every day you encountered something that you literally could not do.”
Courts have said that the Americans with Disabilities Act, which says public accommodations must be accessible to everyone, applies to websites. But there are no regulations outlining exactly what is required of company websites, and the Act, passed in 1990, does not provide specific guidance.
According to advocates, a website could make itself accessible by providing narrated descriptions of what is on the screen or by working with software that does so. An accessible site could also be compatible with a device that turns text into Braille by raising and lowering arrangements of small dots. Federal government websites use what’s called the Web Content Accessibility Guidelines, but those guidelines are not mandated for private companies.
After some high-profile settlements and court decisions that favored disability rights, advocates and defense lawyers say that plaintiffs’ lawyers, some of whom did not work in this space before, have taken notice.
At least 2,258 website accessibility cases were filed in federal courts last year, almost three times the number filed in 2017, according to the survey conducted by Seyfarth Shaw. About two-thirds of the cases, 1,564 of them, were filed in New York. Florida, a distant second, saw 576 suits.
“The landscape is looking rather bleak for defendants,” said Minh N. Vu, a partner at Seyfarth and the head of the group that conducted the survey.
Businesses that are sued typically react by making their websites accessible, to avoid the expense of a long and possibly futile court battle. Because the disability law says defendants can be liable for plaintiffs’ legal fees, the businesses also usually negotiate a cash settlement to get the case dropped to avoid a massive legal bill.
Gallery owners say they expect to reach settlements of about $10,000 to $15,000 each.
Playboy.com is one of the few businesses fighting the suits. The complaint against the publisher was filed on behalf of a legally blind man from Queens named Donald Nixon, who also sued at least 54 other businesses. It alleges that the “plaintiff and visually-impaired persons have been and are still being denied equal access to defendant’s website, and the numerous goods and services and benefits offered to the public through the website.”
Lawsuits remain a crucial way to ensure the disabled have access to the world around them, their advocates say; and having settlements cover attorneys’ fees means that people without tens of thousands of dollars to spare can hire a lawyer. But some advocates fear that giant batches of lawsuits, filed in quick succession and then settled confidentially, may do more harm than good, even if they get individual websites to change their practices.
“It gives a bad impression of the Americans with Disabilities Act, and it gives a bad impression about the importance of web accessibility,” said Lainey Feingold, a disability-rights lawyer whose focus is on digital accessibility.
“Drive-by lawsuits,” as critics often call them, have been an issue dating back to the 1990s, when they were more focused on physical access to buildings. A recent bill called the ADA Education and Reform Act would have required a written complaint and given businesses a grace period to begin necessary fixes before they could be sued. It passed the House in the last Congress, mostly with Republican support. But it was vigorously opposed by the National Federation of the Blind because, a spokesman said, it made it more difficult for the disabled to get their needs addressed. The Senate did not take up the bill.
The cost to fix an existing website can vary enormously. Lisa Spellman, the owner and director of the 303 Gallery in Chelsea, said it would cost her $3,000 to $4,000. Philippe Alexandre, the president of the Alexandre Gallery in Midtown, said he paid a consultant $150 to install an audio component to his site. Expert testimony in a case against Winn-Dixie, the grocery store chain, estimated it would run the company $37,000.
Mr. Borghi said that he was happy to make his gallery’s website accessible and that he was able to do it with a free widget from WordPress, which added narration, larger fonts and keyboard navigation. But he said he was not sure if that made him fully compliant; the lawsuit against his gallery is still pending.
Art galleries might not seem like an obvious target for this type of litigation. But Georgina Kleege, a lecturer at University of California Berkeley and the author of “More Than Meets the Eye: What Blindness Brings to Art,” noted that blindness is not a “monolithic condition.” Some people can see colors or shapes. Some are born completely blind, but more often they lose some or all of their vision late in life.
“Even people who are born totally blind live in a visual culture,” Ms. Kleege said. “It’s a social justice issue in terms of inclusion. People need to have access to cultural institutions as much as to other institutions.”
Indeed, Eve Hill, a disability-rights lawyer who often represents the National Federation of the Blind, said there are plenty of blind and visually impaired people who want to buy art.
“Blind people put art on their walls, too,” Ms. Hill said. “Too often for the same reason sighted people do: It goes with the furniture.”
Feb. 18, 2019
By Elizabeth A. Harris
Susan C. Beachy contributed research