Can people with disabilities sue as whistleblowers when government contractors fail to deliver accessible goods and services? The short answer appears to be yes.
The phases of accessibility lawsuits as I see them:
Phase 1: PwDs suing website owners (2006-current)
Phase 2: Employees with disabilities suing employers (2018-current)
Phase 3: PwDs suing Contractors who developed digital properties that should have been accessible, but weren’t (2019)
Less than a month ago, I wrote about a case where Hertz was suing Accenture over Accenture’s failure to create a usable website and mobile app, and failing to deliver items that were specified in the contract. The items Hertz requested are very common requests for companies who wanted to implement accessibility.
This case takes a different approach, but with a similar outcome. First, a couple of short (hopefully understandable) legal definitions:
- Constructive fraud describes a situation where entity gained an unfair advantage by deceitful methods. It is different from actual fraud in that intent is not required.
- Qui tam lawsuits are a type of whistleblower lawsuit that is brought under the False Claims Act, a law that rewards whistleblowers in successful cases where the government recovers funds lost to fraud.
- Third party beneficiaries are people who will benefit from a contract made between two other parties, making them the “third party.” Under some circumstances, third party beneficiaries have legal rights to enforce the contract.
- Plaintiff is blind
- The State of California contracted with a division of Xerox called Conduent to create a reservations system for the Parks department.
- The contract between the State of California and Conduent contained multiple references to accessibility
- Of course, reservecalifornia.com wasn’t accessible, in large part because Conduent only used automated testing plus some checklists. This is just one of the reasons I have a disdain for checklists, read the complete article here.
The reason I seriously doubt Conduent’s claims that they actually ran two accessibility checkers that passed is because one of the allegations in the suit identified:
pages have no titles, have no headings, have unlabeled or mislabeled controls or images, use non-compliant color schemes, or use visual-only challenges
Even the most basic of automated checkers can pick up missing page titles, headings, and unlabeled images and controls. It is probably that underlying reasoning where further along in the lawsuit, Bashin alleges:
Conduent made these statements with actual knowledge that they were false, or acted in deliberate ignorance or with reckless disregard to their truth
In this regard, this case smells a lot like Gomez v. GNC where GNC’s so called accessibility SME “asked a couple of friends and ran an automated test suite” to ensure the GNC site was accessible. Didn’t work out so well for the defendant in that case. In short, this is a case that I really, really would not want to defend.
- Bashin is clearly a third party beneficiary (TPB)— who are the intended users of a parks reservation website, if not members of the public who want to camp? While that wasn’t alleged in this case, it could come up in a case between two private entities.
- With an 18 % rate of disabilities in the US, no one should have been shocked that people with disabilities would use the site.
- I wouldn’t be surprised if the complaint was amended to include TPB allegations which could potentially survive the whistleblower piece getting tossed out. Note — whistleblower cases are only available when the government has been defrauded, any potential website user could be a third party beneficiary in a breach of contract case.
- Unlike Hertz v. Accenture, accessibility was actually explicitly called out in the Conduent contract, with multiple email exchanges back and forth with the state regarding testing requirements being attached to the final SOW.
- You don’t have to read too far between the lines to realize that:
- Conduent ran out of time because they left accessibility testing to the end, and
- Conduent didn’t want to pay the 10K per day in liquidated damages for a late delivery so they short changed even the limited work they had promised to do.
- This is a prime example of why you should never, ever leave accessibility to the end. This is exactly what we can infer Conduent did, since they deliberately excluded accessibility testing from its 42-page test plan and telling the State of California it would come later.
- “Trust but verify” is the watch phrase of the day for ANYONE getting software developed for them.
- Require the vendor deliver printouts of test reports at a minimum (both manual and automated).
- Consider doing your own testing, which can range from spending a small amount of money to get a crowdsourcing company to have a couple of people with disabilities to do a few hours of testing for you all the way to having a soup-to-nuts audit done by one of the big guns.
- It won’t take long to figure out if the test results reported by the vendor are fantasy or reality.
3. And finally, never assume that people with disabilities don’t use your goods or services (in this case, parks). That is stupid, discriminatory and offensive — the trifacta of badness.