Article updated
This article has been updated since it was first published on July 21, 2019. The most recent update was added on December 4, 2023. Read the updates for this article.
[Note: Please read the update to this article in the December 4, 2023 update below. This article was originally titled “California Pays 66 Million Dollars for an Inaccessible Website, Lawsuit Follows. The case has now settled. It is a settlement that everyone involved in public procurement in the United States, including anyone selling digital products to government agencies, needs to pay close attention to.]
Imagine this: Two companies charge the State of California a potential sixty six million dollars to build a website for a state park reservation system. (Yes, an anticipated $66,000,000.00.) The contract requires the website to work for all California residents, including those with disabilities. (In other words, the website is supposed to be accessible.) The website gets delivered and rolled out, but is not in fact accessible.
These are the facts alleged in a lawsuit filed earlier this year by the disability civil rights firm TRELegal. The lawsuit seeks damages on behalf of the State of California and injunctive relief on behalf of a blind representative plaintiff. I’ve illustrated this post with an image of a pile of money — money that would have been better spent building accessibility into this website.
The press release announcing the case is titled “Fraud Whistleblower Seeks Redress for Inaccessible Public Website that Cost California $66 Million.” You can read the whistleblower press release here.
Accessible Procurement Matters
At its core, this web accessibility lawsuit is about procurement. It is a serious civil rights case brought by a respected civil rights firm with a lesson for anyone selling and purchasing technology.
The lesson? It is not enough to put language in a contract and hope for the best. Technology must be tested for accessibility and usability throughout the development process, on delivery, and once it is in use. Especially in a situation like this, where accessibility was identified as a deliverable, remediation must happen before roll-out.
And not just automated or even manual accessibility testing. Websites — and all digital technology — must be evaluated by a cross-section of users with disabilities to ensure the technology will really work for everyone. In the California whistleblower case, the website at issue was for a state-wide park reservation system.
How hard would it have been to bring in groups of disabled users along the way to make sure the site could be used by all Californians, including those who cannot hold a mouse, see a screen, or hear audible content? Couldn’t some of that 66 million have been allocated to real usability testing?
The access barriers behind the whistleblower suit should have been identified long before the site was deployed for California residents. A robust accessible procurement process would have helped bake accessibility into every element of the process. [Resources from the non-profit Disability:IN that I helped develop offer tips and best practices for developing such a process. Visit the Procure Access Initiative portal and Disability:IN’s Disability:INclusive Workplaces – Accessible Technology Procurement Toolkit]
In his firm’s press release, attorney Tim Elder compares the park system website to a physical building without a ramp:
California’s taxpayers should be outraged that they’re paying big money for such a shoddy website. The disability access violations are on the level of a new multimillion-dollar public rec center built with stairs up to the front door and no wheelchair ramp.” Timothy Elder, Principal Attorney at TRE Legal Practice.
It is 2019, and long past time for technology to be born accessible. I cannot predict what will happen with this lawsuit as it makes its way through the court system. But regardless of outcome, I invite technology purchasers and developers to take its core message to heart: be sure the technology you are purchasing can be used by everyone, and remember that “everyone” includes people with disabilities.
Updates to this article
December 4, 2023 Update
On December 1, 2023, the law firms that filed this case announced it had settled. They made the announcement with a press release titled “Blind Leader Wins $2 Million Settlement Over Inaccessible California Parks Website” The sub-head shared that the “Settlement ranks as one of the largest resolutions of web access litigation in the U.S.”
This is a crucial settlement for everyone involved in procuring technology — websites, mobile apps and more — in the United States public sector. As described in the article above, this is a case about an organization delivering a website to the California parks department that was supposed to be accessible and wasn’t.
The case was brought by a blind whistleblower (technologist and advocate Bryan Bashin) who wasn’t able to use the website to make a reservation. Bashin filed the lawsuit to get the site fixed, to recover damages for the state, and to recover damages for the violation of his civil rights.
This settlement agreement does all of that. I was glad to see that the “fix” part includes addressing barriers identified by Sina Bahram, the well respected principal at Prime Access Consulting.
Making a false claim about accessibility is fraud
While this case is about procurement, it is also about fraud. When a web developer has a contract with a government agency to deliver an accessible website but instead delivers a site that disabled people can’t use, the developer is fraudulently taking money from the government agency. The developer is making a “false claim” about accessibility that isn’t just unfair, doesn’t just exclude people with disabilities, it’s illegal.
This case was innovative and as far as I know, the first of its kind in the nation. The lawyers who achieved this settlement are interested in talking confidentially to people who may be aware of this type of fraud. As Tim Elder writes in his blog post about the case linked below:
Fraud cases such as this one have the potential to result in jury verdicts of tens of millions of dollars in damages. TRE Legal is interested in consulting with anyone who has whistleblower evidence of potential accessibility fraud on the government. Many website developers, user experience testers, compliance officers, accountants and others working for large technology contractors may be aware of such situations in which the contractor is falsely claiming that the technology meets mandatory accessibility requirements so that it can be paid by the government.lawyer Tim Elder
I extend my congratulations to plaintiff Bryan Bashin, to Tim Elder and Kris Nelson at TRELegal, and to co-counsel Michael Allen, Rebecca Livengood, Zoila Hinson, and David DePriest at Relman Colfax. It’s not easy to pursue a groundbreaking innovative lawsuit like this to the finish line, achieving both the “fix” and the money that the law allows. These lawyers did so ethically with a commitment to digital inclusion, accessible procurement, and lasting change.
Learn more about this important case:
- Read the Settlement Agreement in the California Parks False Claims Act case
- Read the blog post about the settlement by Tim Elder, the lawyer who filed the case. For those who want to dive deeper, this blog post has links to other legal documents filed in the case.
March 21, 2023 Update
This case is currently scheduled to go to trial in the summer of 2023.
November 15, 2019 Update
The company that delivered the 66 million dollar website to the State of California tried to get the case thrown out of court in 2019. The judge said no. Read an article about the judge’s Order. Read the judge’s Order in the case.