National Federation of the Blind Sues Epic Systems: New Chapter in Accessibility Litigation for Employers and Technology Vendors
This is a substantial development in an extraordinarily active area of litigation.
Until now, virtually all website, app and technology accessibility litigation has been focused on Title III (the "public accommodation" provision) of the Americans with Disabilities Act, and equivalent state laws, which protect consumers. This new case, NFB v. Epic, is significant in that its central claim is that Epic's alleged inaccessible software and technology results in illegal disability discrimination against blind healthcare workers and employees.
A quote from NFB's Complaint:
"While Epic has taken steps to make patient-facing portions of its electronic health record software accessible with screen reading software so that blind patients are able to access their health information, Epic has not made the clinical or administration-facing portions of its software accessible to blind healthcare workers... Because blind individuals cannot use Epic's software on the clinical or administration side, they are effectively barred from employment at hospitals and facilities that use Epic's software."
The Complaint concludes:
"By selling and/or licensing inaccessible software to employers in Massachusetts and by failing to remediate known access barriers in its software, Epic has introduced an artificial job requirement of sight that has a disparate impact on blind individuals (including NFB members) who are otherwise qualified to be employed at hospitals and by healthcare providers that use its software. Epic has thereby interfered with the rights of blind individuals to equal employment opportunities as guaranteed by Mass. Gen. Laws..."
Website, app and other technology accessibility litigation, usually involving blind or deaf plaintiffs, continued to explode in 2018. This case looks to further fuel that trend.
Actions to Reduce Risk/Tips for Employers and Technology Vendors
Unfortunately, the law and courts give scant guidance for employers and technology vendors looking to avoid litigation and reduce risk. In this context of uncertainty, and drawing from Title III ADA litigation, technology vendors and employers may wish to consider the following (although to be clear—at present it is unclear as to whether the law requires any such actions):
- Test software, websites and other tools to ensure that they are compatible/functional for users using screen-reader technology such as JAWS. Testing should include live-user audits (purely automated tools fail to catch most accessibility barriers and produce false positives and false negatives).
- Customers: Ask software and other technology vendors about the accessibility of their tools and products for disabled users. Share this information with your procurement department. Add contractual clauses to your vendor/license agreements, to include a representation and warranty of accessibility, along with indemnification for violations.
- Provide alt-text for images. Provide audio captions for video and audio files. Ensure that tools can be used and navigated through a keyboard only, without the use of a mouse.
- Consider drawing lessons and measures, where applicable, from the Web Content Accessibility Guidelines. WCAG2.0AA is the standard cited most frequently by courts, however version WCAG2.1 is the most recent guideline.
- Obtain appropriate insurance coverage.
- Do not throw out or ignore a demand letter. Seek qualified legal counsel before responding to any demand.