Listen
In this episode, we discuss the recent $2 million court settlement between Bryan Bashin, a leader in the blindness community and blind camping enthusiast; and Conduent State and Local Solutions, the developer who built California’s Parks and Recreation Department website, which, according to court documents, failed to meet even the most basic accessibility standards.
Mentioned in This Episode
- Non-Alcoholic Surely Sparkling Rosé
- Blind Leader Wins $2 Million Settlement Over Inaccessible California Parks Website
- Settlement Agreement and Release of Claims
- Great outcome in California Whistleblower’s Inaccessible Website Fraud Lawsuit by Lainey Feingold
- Innovative fraud whistleblower suit in website case produces multimillion-dollar damages settlement and remediation plan
- Accessibility in Contracts
Transcript
>> CHRIS HINDS: Welcome to episode 48 of the “Accessibility Craft Podcast,” where we explore the art of creating accessible websites while trying out interesting craft beverages. This podcast is brought to you
by the team at Equalize Digital, a WordPress accessibility company and the proud creators of the Accessibility Checker plugin.
In this episode, we discuss the recent $2 million court settlement between Bryan Bashin, a leader in the blindness community, and blind camping enthusiast; and Conduent State and Local Solutions, the developer who built California’s Parks and Recreation Department website, which, according to court documents, failed to meet even the most basic accessibility standards.
For show notes and a full transcript, go to “AccessibilityCraft.com/048.”
Now, on to the show.
>> AMBER HINDS: Hey, everybody. It’s Amber, and I’m here today with Chris.
>> CHRIS: Hey, everybody.
>> AMBER: And Steve.
>> STEVE JONES: Hello, everyone.
>> AMBER: And we are going to be talking about a $-2 million settlement in a California case against a web developer who promised to deliver an accessible website and did not, and they got sued and settled for $2 million. But before we talk about that case, and the implications for all of our businesses, let’s have a drink.
>> CHRIS: Yes, I’m cautiously optimistic about this one. We’ll put it that way, so this is a non-alcoholic sparkling rosé. It will be the first non-alcoholic wine I will have ever personally tasted, so it’ll be a new
adventure, for me at least, and this is Surely, and it’s a Sparkling Rosé. It’s going to be made with California grape juice, and…
>> AMBER: Hold it up, Chris. This is also our first episode where, if you want to, you can watch it on YouTube, so I feel like, Chris, you should be holding the bottle, being like Vanna White while you talk.
>> CHRIS: You’re making this so much more complicated than it already was.
[laughter]
I mean, obviously, I thought a little bit about how I look today. I’ve got my WordPress Accessibility Day shirt and my post status hat. But we’re trying this out. I got to crack this open here or pop it open, and Steve had an experience with this that he can tell you about while I work on this.
>> STEVE: While we watch Chris have the same experience. [chuckles]
>> CHRIS: Yes.
>> AMBER: Yes, so what happened when you opened yours, Steve?
>> STEVE: Oh, man, it made a mess all over my desk and [laughing] the floor and stuff. I expected a little bit, but, boy, it really gushed out.
>> AMBER: So Chris has a towel. This is the art of opening a champagne or a sparkling wine. Maybe you have to put a towel on it.
>> CHRIS: Yes, you just twist very slowly and it should just be a hiss, not an explosion. There it is.
>> STEVE: Oh, man.
>> AMBER: I don’t know if we got that on the microphone.
>> STEVE: I heard it a little bit, but that’s cheating.
[laughter]
>> AMBER: So did you put your thumbs around the neck of it, or your hands around the neck and your thumbs on the cork and just go and, like, pop it right out?
>> CHRIS: Yes. That’s the fun way to do it.
>> STEVE: I just pushed on it and it was just, like, and just shot out like this high. It was crazy. [laughs]
>> AMBER: Oh, man, look at him pour that. It looks foamy. Does it look too foamy, Chris?
>> CHRIS: Yes, well, I’m priming the glass, which is the classic sparkling wine pouring technique.
>> AMBER: What does that mean?
>> CHRIS: You do a little pour first to settle the bubbles and then you come back to it and you do a longer pour, and that just makes it foam up a little bit less in the glass.
>> STEVE: OK.
>> AMBER: Interesting. Well, he’s pouring two because he has mine, and we share an office, so I’m going to go get mine and I will be right back.
>> CHRIS: All right. We’re going to break for commercial.
>> STEVE: So let’s talk about glass. Let’s talk about our…
>> CHRIS: Oh, yes.
>> AMBER: Oh, yes, so we have the champagne flutes. You don’t have a champagne flute? What are you drinking out of?
>> STEVE: I have a glass cup.
>> AMBER: [chuckles] Like, for water? A water glass?
>> STEVE: A water glass.
[laughter]
>> CHRIS: I mean, that’s, that’s better than a solo cup, so we’re, you know, [crosstalk ].
>> STEVE: You know, it’s probably par for the course for Steve in these drink tests. [laughs]
>> AMBER: No wine glasses in your home.
>> STEVE: No, no. I should get some though.
>> AMBER: We actually have quite a few actual wine glasses only because Chris’ dad gave us the wedding crystal that he and Chris’ mom had, so we have very nice wine glasses, but we only have these two champagne flutes, and if anyone is watching on YouTube, they’ll see that on the stem, there are two hearts stacked one on top of the other, and that is because these are the champagne flutes that we had at our wedding when we did, you know, the champagne toast right before I shoved wedding cake up Chris’ nose.
[laughter]
>> CHRIS: Yes. True story.
>> AMBER: Yes. These are the only champagne flutes we have, so this is what we use. [chuckles]
>> STEVE: Yes. This is so romantic.
>> CHRIS: Yes.
[laughter]
>> AMBER: But let’s taste it and…
>> CHRIS: Yes, I’m appreciating it. It’s kind of like a peach color almost.
>> AMBER: Isn’t it supposed to be more pink? Or is this a good color for a rosé?
>> CHRIS: I don’t normally see rosés that look quite this tone in terms of color, but it’s also a non-alcoholic rosé, so maybe you lose some of that color in the de-alcoholification process.
>> AMBER: OK, did you look this up? Is that what it is? They took alcohol and made it non-alcoholic? [laughs]
>> CHRIS: I have no idea. This might be sweet.
>> STEVE: It says, “Alcohol removed. Contains less than 0.5% ABV.”
>> AMBER: Interesting.
>> STEVE: So I guess they have removed it.
My son saw this, and he said it was the color of urine. I said maybe somebody’s slightly dehydrated. [laughs]
>> CHRIS: Yes, I was going to say, you might want to go see a doctor.
[laughter]
>> AMBER: Yes, yes, yes. I mean, it’s an OK color, and I guess we don’t really drink rosé, but I think of rosé as pink, but I don’t know.
>> STEVE: Yes, yes.
>> AMBER: All right, so I’m going to taste it.
>> CHRIS: This has kind of an odd taste. I’m going in again.
>> AMBER: OK, it is dry.
It is not sweet, which is fine. I wouldn’t drink a really sweet wine anyway.
>> CHRIS: Yes.
>> AMBER: It definitely has like a weird grapey aftertaste that I don’t think you actually normally get with wine.
>> CHRIS: It’s very sour, like, more sour than I would expect a wine to be. It’s almost like it’s gone a little bit vinegary, and I’m not getting a lot of complexity. Or maybe just those sour notes are all I’m tasting and it’s interfering with anything more subtle, but…
>> AMBER: Yes, it doesn’t seem layered, right?
>> CHRIS: Yes. Kind of one note.
>> STEVE: Not that I have a palate to work off of here, but I’m getting a little bit of, like, apple cider vinegar. [chuckles]
>> CHRIS: Yes.
>> AMBER: Oh, yes, maybe.
>> CHRIS: Yes, it’s definitely sour, definitely a little bit vinegary. I can see the apple cider vinegar, and why you’d say that. I’m trying to detect any other flavor, but I just can’t really get much else out of it.
>> STEVE: Yes, sour.
>> CHRIS: Sour grapes.
>> STEVE: Yes.
>> AMBER: Yes, so here’s what it says for their process on their website, so they use California Grapes. They have a bunch of stuff about why California grapes are better.
>> CHRIS: Yes.
>> AMBER: And they said they only use wines that can maintain their flavor and charm through de-alkalization, so it is fermented, right? It’s not grape juice, so they have the same process of fermentation to create wine, and then it says, “Using cutting-edge spinning cones column technology, we are able to delicately remove the alcohol while maintaining the wine’s natural essence and aromatics.”
So they’re spinning it really fast? I don’t know what that means: Spinning cone column technology.
>> STEVE: Yes, sounds like a lot of marketing speak.
>> AMBER: Yes, yes, yes, and then they blend or mix it, so it says, “It’s careful chemistry and artistic approach. Our wine team creates the final composition using natural ingredients, botanicals, and teas, and they create a blend.”
>> CHRIS: Yes. What we’re supposed to get, apparently, according to the notes in their own description, is crisp, light notes of strawberry, pear, and tropical fruits.
>> AMBER: OK. Now that you told me that, I’m going to see if I can taste any of it.
>> CHRIS: I feel like I barely get the pear, and that’s about it, personally, and it’s barely there. I’m getting, like, all crisp. It’s all sour.
>> STEVE: Yes, it’s real sour.
>> AMBER: OK, wait. Now that you’ve said pear, I totally taste pear. OK, it is a little kind of tropical, maybe. I don’t think I get strawberry.
>> CHRIS: But it’s, like, super under ripe pear.
[laughter]
>> AMBER: So I think, just like many alcohols, it kind of is growing on me a little bit as I drink more of it. We’ve had beverages before where I had a drink, and I was like, “No,” and sometimes they got worse the more you drank. [chuckles] But I like tasting it more.
Now, that said, if I have to think about the typical thing that we do for, like, a non-alcoholic sparkling, it’s like a Martinelli’s. Like, at holidays, we’ll buy that for the kids, and sometimes we even drink it, too. I don’t know if I would choose this over that. [chuckles] I don’t know. What do you guys think?
>> STEVE: Yes, it definitely hits you hard the first time.
>> CHRIS: Yes.
>> STEVE: It’s not super pleasant. [chuckles]
>> CHRIS: You know what I was kind of thinking of is, like, I’m someone who kind of likes drinking pickle juice sometimes. Like, the sour or the salt.
>> AMBER: For real, and he’s trained our children. Our children drink it, too. [chuckles]
>> CHRIS: Not all the time, but sometimes. But something about, like, all the electrolytes in it just, like, it satisfies something, and this kind of is making me think of the same kind of vibe I get from drinking that. It’s not a flavor I would go out of my way to get, but I don’t mind taking another sip just because of how sour it is.
[laughter]
>> AMBER: Yes, it’s interesting. To me, this is not gross. I think it’s interesting. It felt more single note, but then once you told me what… I don’t know if that’s just the power of –
>> CHRIS: That’s the power of our brains, right?
>> AMBER: – Suggestion, right?
>> STEVE: Yes.
>> AMBER: Once you told me what was supposed to be in there, I was, like, “Oh, I think maybe I can taste that.”
[laughter]
I mean, it might make an interesting mimosa, with the orange juice, if you wanted to have a non-alcoholic mimosa in a way that… Like Martinellis are usually too sweet for that, so that might be a good use for the Surley thing, and maybe also people who have tasted more wine.
I’m not really a wine drinker. I tend to drink more beer than anything, so they might taste this and be like, “Oh, yes, that’s great.” Because they know more about how to taste wine than I do.
>> CHRIS: I’m out of practice, but speaking as someone who has tasted hundreds and hundreds of wines, this is not particularly good.
>> AMBER: OK, never mind, then. [chuckles]
>> CHRIS: I think it’s probably like a solid C-minus.
>> AMBER: OK, but if you were avoiding alcohol, does that make it better?
>> CHRIS: I have no perspective to offer on that because this is the only non-alcoholic wine I’ve ever tasted. I’d probably have to taste more to see if this is par for the course or not. But, yes, you’re right. Comparing this to alcoholic is like comparing apples to oranges, right? It’s not going to be the same.
Especially with, like, spinning cone technology. I wonder if that’s, like, introducing a bunch of air into the wine that then over-aerates it, and that’s why it seems so sour and one-note. Like, I don’t know.
>> AMBER: This episode is coming out in January, so that means later this year, which will be 2024 when this releases, we should have another non-alcoholic wine from a different company to see if it’s just non-alcoholic wine or if there’s something about this, you know, that is better or worse.
So we’ve talked beverage. Let’s talk about this lawsuit, which was, the press release from the law firm who was representing the plaintiff came out December 1st.
So the settlement was announced on December 1st, and it’s huge, so I thought that it would be worth us talking about a little bit.
Chris, do you want to give a little summary of what the lawsuit was about and the settlement? Can I throw that one at you?
>> CHRIS: No, I didn’t read any of this… No, I’m just kidding.
[laughter]
I’ll give a very brief summary that will probably only be partially factually correct because I’m not used to reading legal documents. But basically, the person who filed the suit was a leader in the blind community in California. His name’s Bryan Bashin, and I believe he tried to make a reservation on this Parks and Recs site for a campsite to do some outdoor stuff, and discovered that it was completely inaccessible, and so in order to bring awareness and to basically compel the state, and to fix the problems, he filed a suit with a law firm.
So they cited two different laws. One is something that some people versed in accessibility might expect, which is the Unruh Civil Rights Act.
That’s something we hear thrown around quite a bit in the accessibility world, and this is a law specific to California that imposes a lot of accessibility requirements.
Amber, correct me if I’m wrong. I believe It’s both on public institutions, but also, like, for-profit businesses and other organizations of certain sizes.
>> AMBER: Yes. The Unruh Civil Rights Act is an extension of the Americans with Disabilities Act, so the state of California has taken that federal law and they have made it more enforceable for a lot of different things, not just websites, but it does have.., and most of the lawsuits that I’ve seen out of California, they always are against websites for accessibility that are under Unruh. But what’s new about this one is that second law.
>> CHRIS: Yes, the second law is what’s new, so this case also cites or files claims under the California False Claims Act, because the agency that built this website for California Parks and Rec, I believe, claimed that all of the systems and everything in it were accessible, and that was part of the scope. That was part of their guarantee, and Mr. Bashin discovered that that was not the case, and so that is kind of the impetus of the lawsuit, what laws were being used in the lawsuit, and what ultimately happened after legal proceedings and everything else.
I don’t think that this went all the way to trial. I think it settled. But basically, as part of the settlement, the agency that built this agreed to pay $2 million in damages, and I don’t know who those damages were awarded to. I didn’t get that far in my reading. But they’re paying $2 million in damages, and they’ve had to promise to fix every single accessibility problem on this platform that they built, which is what they originally promised to do anyway, was have something accessible, so they’re just being compelled to do what they said they were going to do in the first place, so that’s the nuts and bolts of this.
>> STEVE: This episode of “Accessibility Craft” is sponsored by Equalize Digital Accessibility Checker, the WordPress plugin that helps you find accessibility problems before you hit “publish.” A WordPress native tool, Accessibility Checker provides reports directly on the post-edit screen. Reports are comprehensive enough for an accessibility professional or a developer, but easy enough for a content creator to understand.
Accessibility Checker is an ideal tool to audit existing WordPress websites, find accessibility problems during new builds, or monitor accessibility, and remind content creators of accessibility best practices on an ongoing basis.
Scans run on your server, so there are no per-page fees or external PPI connections. GDPR and privacy compliant. Real-time accessibility scanning. Scan unlimited posts and pages with Accessibility Checker free.
Upgrade to a paid version of Accessibility Checker to scan custom post types, and password-protected sites. View site-wide, open issue reports, and more.
Download Accessibility Checker free today at “EqualizeDigital.com/Accessibility-Checker.” Use coupon code “Accessibility Craft” to save 10% on any paid plan.
>> AMBER: Here’s the breakdown on the compensation and fees from the settlement, which we can link to this PDF, so the actual settlement was $2,050,000, so the $50,000 is going to be paid to an outside accessibility-auditing company to audit the website, and the developer had to agree to pay the $50,000 for auditing no later than 15 days after the settlement.
Then from the $2,000,000, that is broken up a couple of different ways, so $250,000 was awarded under the False Claims Act, so a small percent of that was because of the False Claims Act, and of that, 35% went to Mr. Bashan, the gentleman who filed the claim, and the rest went to the state. But the state gave him a, “Oh, you pointed this out to us that we were defrauded, 35% finder’s fee,” right? And then the $1,750,000, so the remaining, went to the gentleman who filed as his settlement for claims under the Unruh Civil Rights Act, and of course, you know, his attorney’s fees will come out of that, so he walked away with more money than the state did in damages.
Then the web developer, in addition to paying the $50,000 for the audit as part of the settlement, it says that they are agreeing, within a, you know… I mean, this is a part that I think is not quite as great, as I’d love if it would have been time bound to say when it would fix. But it says, you know, “within a reasonable amount of time” that they will fix everything that’s found in the audit. Because it’s hard to put a timeline on something when you don’t know what the problems are.
Steve, as a person who builds things, what was your initial gut reaction to this settlement?
>> STEVE: I read the headline, and I was like, “Uh-oh,” right? But once you read through it, you get a little more context.
It’s scary to some degree. But as a developer, I mean, this is huge. We’re talking big money here, right? $66 million for this project. Is that what it was? Or up to $66 million?
>> CHRIS: Yes. You’re saying that was the value of the project that this agency did.
>> STEVE: Yes.
>> CHRIS: Yes, I think it was.
>> AMBER: And it was like a six-year project, and they paid, like, $10 million a year or something for the website to be built.
>> STEVE: Yes, yes.
>> AMBER: I personally am, like, “How does it take six years?” Is it really that hard? [chuckles]
>> STEVE: We could get into a whole conversation on government waste, right?
>> AMBER: Yes.
>> STEVE: I think this highlights rot in the government. This highlights rot in agencies, right? People get these contracts, and they sit pretty for a long time, and they take their time to do these projects. I don’t know how big the website was. I haven’t looked at it, but it’s scary as a builder and, you know, as an owner of an agency, right? Like, it’s a little scary. But I think there’s is a lot of fault on both sides. I think it’s weird.
I actually would hold the state of California more liable, too. I get that they were…
>> AMBER: For accepting the website and continuing to pay for it without doing their own verification that it was actually accessible before it launched?
>> STEVE: Right? I mean, if this is a government contract, I’m sure there’s a team of people that are assigned to manage this government contract, right? And they should have a basic understanding of knowledge that they’re getting what they’re paying for, right?
>> CHRIS: Yes, and I saw somewhere, and this isn’t to interrupt, but I think this lends itself to your point, and then I want you to continue, somewhere in the commentary from the law firm that filed the suit is that even the most basic validation of accessibility would have found that there were glaring issues.
>> STEVE: Right.
>> AMBER: Yes. Like there were WAVE issues, right?
>> STEVE: Yes. If somebody at the state of California would have pulled the website up and installed WAVE in their browser and hit it, they would have noticed, right? Like, that’s what they’re saying. Yes, and I really think it highlights a lot of issues on both sides. If the state of California really cared about accessibility, the people managing this contract would have taken basic steps to ensure they’re getting what they paid for.
>> AMBER: Yes. It’s shocking to me that a website of this scope did not include user testing before launch.
I’ll give a shout out to Daniel Schutzsmith from Pinellas County, Florida. They use our Accessibility Checker plugin, and he did a lot of work when they rebuilt the county website on the accessibility front. But one of the things they did that I thought was good, which NASA also did, was they had a public beta in a time period where the old website is still active. But then they have the new one at a beta, and it’s open to everyone, and they’re soliciting for feedback.
On the NASA website, we ran some user tests for them. It’s surprising to me that this website in California… Because if they had done any user testing, even with one person who was blind, they probably would have identified all this, and in a $-66 million or however many millions of dollar project it is, it seems like there’s a budget for that. [chuckles]
>> STEVE: I mean, we’ve seen it from our end, right? We’ve seen the user testing happening, right? Like the user testing, we can create the reports and we can hand them over to the third-party agency, and then it’s on that third-party agency to actually remediate that, right? That’s out of our hands.
>> CHRIS: Yes. To play devil’s advocate, too, that very well could have happened, so before we lay a significant portion of this at the feet of the state of California… Like, they might have done that testing. They might have raised issues. I mean, it’s still may be partially their responsibility. Now, I’m speculating completely. I don’t know if this happened. But they might’ve handed that list of issues to this agency, and then the agency could have been, like, “OK, it’s fixed.” Right? And not have actually fixed it, and then, obviously, maybe the state didn’t go back and validate.
>> STEVE: Yes, but I think, to your original question, Amber, like, if we could like bring this down to our level, like WordPress world, solopreneurs, and small agencies and stuff, I have seen quite the uptick just in business cards that I’ll get at the conferences, where it’s, you know, X, Y, Z agency, and it’ll say, like, “web services,” and then accessibility is like a top tier, like, call out of their service, right?
>> AMBER: Yes.
>> STEVE: And you really have to back that up. It’s not just a selling point. It’s not just something to get a contract that, “Oh, we do accessibility.” You really have to back it up and you really have to do it.
I think where this agency got in a ton of trouble was they claimed that it was going to be accessible. It wasn’t like they hired them to do the website and it wasn’t in the scope, and then the website was not accessible, right? It was in the scope. It was a requirement of the project.
>> AMBER: And they failed to deliver.
>> STEVE: Yes. If you’re claiming that you’re providing accessible websites, you need to back that up. You need to really check and make sure.
>> AMBER: Yes. I wrote a couple of articles for my accessibility weekly series on the Admin Bar, and we can link them in the show notes. One was about accessibility and contracts, which I think we should circle back to, and maybe we can share some of the ways we talk about limiting scope on accessibility and contracts and things like that. But I also wrote just about, like, introducing it and selling it. But a big thing that I said in all of these is you need to be honest, and I think this also probably applies for privacy.
When we’re a vendor, if we’re delivering anything that could have a legal implication, if you are not… Like, it’s one thing in the sales process or it’s easy for a salesperson to be, like, “Yes, we can do that.” But if you are not an expert at it, or you don’t trust yourself on that front, then you should bring in someone who is, or you should tell your client.
We say this with privacy. We’re, like, “I can tell you, you need a privacy policy on your website. I cannot tell you what needs to be in it. Here are your choices. You go write your own. You hire an attorney, which is probably the best bet. Or you go somewhere in between where you use one of those services
that will generate one for you and you assume that it’s good, but I’m not going to tell you which of those three choices is the best for your business because I can’t provide you any advice on that. I just know you need one.” Right? And I think accessibility could be the same way.
If you’re an agency or a freelance developer building websites… You know, in California, like that Unruh Civil Rights Act, that would have applied even if they hadn’t lied, so maybe just saying, “Hey, I know you need this. I am not an accessibility expert. I will do my best, but I can’t guarantee it, and if you need it guaranteed, we need to bring someone else in who can.” I think that’s probably the best way to have those conversations with clients, and you probably have these kinds of conversations with agencies or, you know, what agencies are saying to their clients, Chris?
>> CHRIS: Yes. It’s something that comes up quite often, and I think it’s largely dependent on who the agency is talking to what the outcome of that conversation is going to be. I generally think that the smaller the organization or the institution, the less perceived risk, the less perceived importance of accessibility, and there are ways to skirt around that in a sales conversation and convince them to do it, particularly if they’re in a state where there’s laws that clearly apply. But generally speaking, the agencies are still presenting this as, like, an add-on or a rider to the statement of work versus just a central part of their offering, just doing it the right way, and I think that that’s kind of the paradigm shift we need before we’re going to see this kind of stuff fall by the wayside.
If we want to see fewer lawsuits, fewer legal worries, et cetera, the tools themselves that the, you know, super user-type freelancers who are just stitching various components together to make finished products, those tools themselves need to be accessible, and for the more advanced use cases, there needs to be someone on the team championing it.
This is something that when this lawsuit first came to light that I was talking to Amber about, and I was, like, I wonder, because, good Lord, like, can you imagine the commission check on a $-60 million contract for that salesperson?
>> AMBER: Oh, like, that the salesperson got? Yes.
>> STEVE: Yes.
>> CHRIS: And I’m, like, how much time and due diligence did that sales team, which, it’s probably a sales team, put into really talking to people at the agency about this requirement? And did they really understand what that requirement meant when they were doing the sales discovery? There’s no one party, like you were saying, Steve, that bears all of the responsibility for this.
>> STEVE: Sure.
>> CHRIS: There were multiple points of failure that allowed this to happen with virtually every party involved.
>> STEVE: Yes.
>> CHRIS: Maybe the sales team failed to stress the importance of accessibility in their
internal conversations as they were structuring this project with their technical teams. Then the technical teams didn’t prioritize it as a result of those conversations, and even if it was brought up, it was dismissed. The client obviously wasn’t doing their due diligence at multiple points. I’m assuming there were points for review, right?
>> STEVE: Well, I mean, just in the RFP selection, right? And it’s, like, unless the agency
just outright lied, right? I would suspect that in the RFP, they would have had to provide how accessibility fits into their development workflow, right?
>> CHRIS: Yes.
>> AMBER: Yes.
>> STEVE: I mean, I would hope. I would hope. Unless the agency just outright lied.
>> AMBER: Yes, or they just bulleted, and they said, “It will be accessible to WCAG 2.1 AA,” right? And that was just a bullet point. But they didn’t really talk about how or why.
When we’ve done some bigger government RFPs, they’ve actually done reference checks, and so what would be interesting to know is whether or not, in this particular instance, the state of California did their due diligence. Or did they just take or account? I’m looking at the name, and the name of the agency is Conduent State and Local Solutions, and they were just like, “Oh, all they do is build government stuff for states all the time, so they know what they’re doing, and they would be a good person for us to pick.” [chuckles] right?
>> STEVE: Didn’t it say it was split between two different agencies?
>> AMBER: Yes, it had a subcontractor, US eDirect. The subcontractor was who actually developed the website, so yes, I mean, it’s just interesting.
>> CHRIS: So that’s interesting too, so the people who bid it were not even the people who built it, like, in terms of the team.
On government RFPs, you generally have to list who your subcontractors are and be incredibly transparent of that, particularly if they’re international, and I’m wondering if this agency has been kind of caught in the middle of being lied to by their subcontractor, because I’m going to be real without naming names. We’ve been straight up lied to by subcontractors about their abilities and about what they can deliver.
>> STEVE: Yes.
>> AMBER: Yes, but then we figuratively kill ourselves in order to deliver the right thing and not the crummy thing that we got. [laughs]
>> CHRIS: That’s because we have an Amber. Maybe this other agency didn’t have an Amber. Amber does not let things slide, as we know, when it comes to quality.
[laughter]
>> AMBER: I am quite particular. Hopefully, it’s not too bad.
Let’s circle back for just a second, because you had mentioned, like, the importance in WordPress land of all the components and things. The accessibility and contracts article on the Admin Bar has excerpts from our contract, and our statement of work. Our terms of service, you can read, they’re public on our website, and that includes a few things.
By the way, I should say, our contracts were written by real attorneys. We actually paid someone. We didn’t use a generator to create them, so one of the things that they told us was… We have in our terms of service a statement that says “not a law office.” That basically says we are not a law office. We’re not attorneys. We don’t practice law. We cannot guarantee compliance with any laws as a result, because they said, like, that’s a thing that’s really big. When you talk about ADA or Section 508 or whatever that might be, you need to be clear that your clients understand you’re giving them your best understanding, but it is not legal advice, and then we have a statement where we talk specifically how… It says, “Company cannot guarantee that conforming with WCAG, Web Content Accessibility Guidelines, equates compliance with…” It lists out American ADA, Section 508, or any other applicable law. It just says that “We use WCAG to determine or measure success for accessibility, but it doesn’t mean we’re guaranteeing compliance with laws.” I think that’s probably really important to think about if you’re starting to get into accessibility.
Chris, maybe you could talk a little bit about how, like, we limit it in our statement of work, because we’re never telling people, “Your website will be 100% accessible,” right?
>> CHRIS: I mean, that offer’s on the table, but they would need to have very deep pockets and a lot of time.
>> STEVE: $66 million.
>> AMBER: I would do that for $66 million.
[laughter]
>> CHRIS: And the reason I say that is, if you’re guaranteeing a 100% accessible website, you better be sure that you and your team have 100% control of every piece of content, every page, every component.
Otherwise, you have no business guaranteeing the accessibility of those things, and any of us who have been in the WordPress space for a while can imagine these situations, right?
If you’re bulk-importing someone’s blog, for instance, you don’t know if they have a bunch of images in there that don’t have the alternative text or headings out of order [crosstalk ] inside their individual blog posts.
>> AMBER: Wait. Yes, you do.
>> CHRIS: Well, yes, if you’re using Accessibility Checker.
[laughter]
>> STEVE: Well, I mean, we’ve even talked about adding a feature to the Accessibility Checker that doesn’t allow you to publish inaccessible pages.
>> CHRIS: Yes.
>> AMBER: Yes. But I don’t know if that would apply. When you build a website, you import in their old content, right? Or, like, spreadsheets filled with, like, hundreds of products to a WooCommerce site or something like that, so, I think, you know [crosstalk ]
>> CHRIS: You could set a date where it doesn’t restrict publishing for any post or page that was modified before a certain date, potentially.
>> AMBER: I guess if you import it in, the publish action doesn’t run, so it probably could bypass something like that.
Just maybe clarify a little bit, there is ways, with our Accessibility Checker plugin, to find a lot of problems, even on posts that you haven’t looked at, but that doesn’t mean they’re being fixed.
>> CHRIS: Yes. But you were asking about how we limit our contracts, so I do want to go back to that. Basically, what we say is we will guarantee the accessibility of anything where we have direct control, which is the simplest way that I can put it, so for a typical website project for us, what that means is, anything that we have designed, built, assembled, or otherwise coded ourselves will be part of the accessibility guarantee for that project.
The only exception would be if the customer forces us to make a deliberately inaccessible decision about a component that’s under our control, at which point, we’re having them sign a waiver or provide written authorization saying, “Yes, I understand this won’t be accessible anymore because I’ve made this decision,” and then we screenshot that and we keep it on file in case anything comes up in the future. But that’s how we limit it, so you just have to know what you can and what you can’t control, and limit accordingly.
>> AMBER: Literally list it out in your statement of work. Like ours literally says header, footer, and sidebars, web forms we have built, web pages that we’ve assembled manually, right? So like a page we’ve built in the block editor where we put all the content in, and front-end elements controlled solely by the template, so the theme, and not content areas, it says.
>> CHRIS: And if an update runs and changes any code that directly controls that element that we have a guarantee related to, it immediately voids it. Because we guarantee the forms that we’ve assembled. But basically what that lets us sidestep is if Gravity Forms, which, bless them, and they’re amazing when it comes to accessibility. I don’t think they would ever allow something through.
But if they released a break in change in terms of accessibility in a future update, we would have our out of, like, “Well, this other company controls that code. We can’t be held responsible. You have to talk to them.”
>> AMBER: Well, it’s always time-based. Everything is, right? Even when we do audits for people and we give them a letter of conformance, it’s not, like, “This thing is accessible.” It’s, “On this date and time, these pages and/or components (and we list them out) complied with WCAG, and was accessible.” “But I can’t tell you what’s going to happen even three days later when some content creator comes in and does a whole bunch of things on a website.” So everything always has to be date-based.
>> STEVE: So in the context of this project, it obviously wasn’t on day one, right?
>> AMBER: Yes. It launched not accessible.
>> STEVE: I just want to kind of talk about winners and losers when it comes to money in this project, so I get that the settlement’s huge, right? Like $-2 million settlement, and you gave a little bit of the breakdown of that money. I got a feeling that a lion’s share of that’s going to go to lawyers, which doesn’t make me super happy. [chuckles] But I would like the lion’s share to go to the person that was not able to use the site.
>> AMBER: Well, you know, that’s interesting. I thought about this when I read the settlement. The vast majority of it went to the person and his attorneys, right?
>> STEVE: Yes.
>> AMBER: Way more than actually went to the state of California, who, if you think about it, they were the people who were lied to.
>> STEVE: I know.
>> AMBER: And I found that interesting.
>> STEVE: Yes. I actually would hold the state accountable. Like, I don’t know.
>> AMBER: Oh, so you think maybe the state should have even paid something?
>> STEVE: Well, yes. You put out RFP. It’s your job to vet these agencies, right? Like Chris said, the most basic check would have found that this is not accessible, so it’s, like, is the government not required to be responsible for any decision they make?
>> CHRIS: Come on, Steve. You know the answer to that question.
[laughter]
>> STEVE: Yes, I know the answer to that, and when I talk about winners and losers, we’re talking about the big losers being taxpayer here, right? $66 million is gone, and you’re going to penalize the agency involved $2 million, so they’d have to pull $2 million out of their $66 million money pile, and then the person and the people that couldn’t use the website get a portion of, what was that, 1.2 million or something?
>> AMBER: Yes. Like a portion of $1,750,000. Yes.
>> STEVE: That they have to split with their lawyer, right? So we don’t really know what that breakdown is.
>> CHRIS: Well, in the agency world, too, this was probably an E&O claim on somebody’s insurance policy.
>> STEVE: Yes.
>> AMBER: Yes. Realistically, that $2 million, I bet you the agency didn’t even feel it. Now, maybe their insurance will go up.
>> CHRIS: Yes, their insurance bill is going to go up, I bet.
>> STEVE: And the taxpayers are out all that money and the website is still not accessible.
>> AMBER: Yes.
>> CHRIS: Yes.
>> AMBER: And I will say, as someone who goes camping.., so when I was reading some of the problems that it said, like, I have totally been there. The way these work in… At least when we lived in Colorado, they would have… A lot of the campsites, they’re all closed in the winter, right? Or like certain times, and then at certain points of the year, it would be, like, OK, they’re releasing campsites, and this is what I read, like, happens with California, too, and you go there, and it’s, like “first come, first served” to be able to reserve it.
And so, basically, some people, at least in Colorado, like.., and we did this before, like, we would sit there right before 8 am on the day when they were releasing them so that we could try to find the campsite we want and reserve it.
Otherwise, you literally couldn’t go camping.
>> STEVE: Yes. Like a year in advance.
>> AMBER: Yes. Yes, and it really does put people with disabilities at a disadvantage, and that sucks. If you want to be able to go camping, and you can’t even use the website and reserve it.., and it’s not just like, “Oh, well, you can just call on the phone.” Well, by the time you figure out where that number is, if it’s even public… I mean, maybe the state doesn’t even have that, but it’s probably not enough people for the call volume, and there would be… You sit on there, and then they’d be, like, “Oh, sorry, that campground’s all filled up.”
>> STEVE: Yes. I would have been more happy if it was like $100,000 every day that the website’s not accessible. You know?
>> AMBER: Mmmmm.
>> CHRIS: Yes.
>> AMBER: So that’s what the fine in Ontario is: a daily fine.
>> STEVE: Yes.
>> AMBER: That certainly would motivate everyone to move a lot faster on fixing problems, right?
>> STEVE: I think it’s not viewed the same, right? It’s like, if the only way for people to get insulin was to go into this building that is 10 feet off the ground, and they don’t put a ramp on the building to get in there, now that is completely tangible, right? We can touch that, we can see it, right? They would obviously be in big trouble if people in wheelchairs could not get up there to get their insulin, right? That would be, like, “Fix it right now.” But when it comes to the…
>> CHRIS: There would be a wooden ramp the next day.
>> STEVE: Yes. Yes. Or the place would be completely shut down.
>> AMBER: And you’re thinking, like, the problem with websites is that we have a hard time visualizing the pain or the suffering or the challenges that websites present to people, and we just don’t take it seriously enough.
>> STEVE: Right, and you’ve got all this wealth being transferred around between the government and these agencies, and neither of them are hurting, right?
>> AMBER: Ultimately, they clearly know when they really care deeply about it.
>> STEVE: Right, and unfortunately, I feel like even with the lawsuit, it doesn’t, like, fully… Now, I mean, they’re supposed to fix it, right? I don’t know what the timetable was. Did we read that?
>> CHRIS: Reasonable.
[crosstalk ]
>> AMBER: No, it just… Yes. In a reasonable amount of time. Yes.
>> STEVE: Yes. It sounds like a legal speak, right? [laughs]
>> AMBER: Yes.
>> CHRIS: Yes.
>> AMBER: So Lainey Feingold, who is a top Disability Rights Attorney in the United States, she had a piece on her blog, and she said it’s a crucial settlement for everyone involved in procuring technology, websites, mobile apps, and more in the United States public sector, and she says she was glad to see that the fix was part of the settlement and the agreement, and I think she thinks this case was a good step in the right direction. I mean, this is probably one of the biggest settlements based on what I read on her website and some other websites that there has ever been.
A lot of times the Unruh stuff, it’s like $10,000, right? So having a big settlement. She was also talking about how this is also one of the first times it’s ever been made with a false claims or a fraud thing, and so that then sets precedent. I think that a lot of other.., and it doesn’t have to be users, too. I think any sort of website owner, if they get something delivered, and then they find out via a complaint from their users that it’s not accessible, they might also be able to file a fraud lawsuit if they go back to the agency, and the agency is, like, “Yes, we’re not fixing that.”
I think you’re right. Like, it always feels like it’s not enough. But I do think there’s steps, and it made me sort of optimistic to see what she had to say about it, and that she thinks it’s a good step in the right direction.
>> STEVE: Yes, I think that goes back to what we were talking about: Don’t use “accessibility” as another marketing term to sell your website services. Take it from us. Making a website accessible adds a lot of time. It really does. I mean, once you get good developers that learn how to code things accessibly, it gets better. But if you’re bringing a new developer in each time or if you’re outsourcing each time, you have to spend a lot of time just explaining to them how to make things accessible, so it’s not just a term to throw up on your website to sell websites. You need to back it up and you need to actually make it make it accessible.
>> AMBER: Yes.
>> CHRIS: Yes. I think a closing piece of advice from me is to get a lot of clarity in your sales conversations about accessibility, and where the customer sits on it. Talk about geographic nexus, talk about where their doing business. If they’re in California, if they’re in Ontario, if they’re in New York, if there in the EU, they need to understand that there might be laws that apply to them, and they show talk to some legal professionals, and you should try to structure the project around managing that risk area, right? Because it has been firmly established now, particularly, like, if you are a salesperson at an agency or even a high-end, like, freelancer and you’re selling to government or to public sector, you should be paying attention to this lawsuit.
>> STEVE: Yes.
>> CHRIS: You should be concerned. You should be reevaluating your processes if you’re not highly confident that you’re delivering accessible outcomes to these organizations. That’s my closing piece of advice.
>> AMBER: Yes. I think the other thing just worth for people who are listening or now watching us on YouTube… Either they are someone with disabilities or they’re an insider on an agency, and they know there is fraud. The legal firm that did the case, and we’ll have all the links in the show notes, they put out another thing. They’re basically looking for more. They want to do more of these cases. I mean, obviously, why would they not? [chuckles] But they said fraud cases such as this one have the potential to result in jury verdicts of tens of millions of dollars in damages, and if you’re interested in being a whistleblower, they’re looking for whistleblowers, and so maybe that’s something to consider if you have tried working really hard from the inside and you’re not seeing the change that needs to happen. It might be worth coming forward, you know, or just showing that statement to the people who you work with and be, like, “Look, now that I’m saying I’m going to do this, however, you should be aware of this case,” and maybe that will help motivate some change in your organization. Yes.
Well, it is a very interesting case, and we don’t always get to talk about law and that kind of stuff. Of course, none of us are attorneys, but I think it has really interesting implications for all of our businesses, so I’m glad you two were willing to chat about it with me.
>> STEVE: Yes.
>> AMBER: And it is a new year, so we have a sparkling rosé that we think is mostly [chuckles] worth trying. Maybe not our favorite, but interesting.
Oh, yes. Here, Steve’s got the bottle up. [laughs]
>> STEVE: There’s your thumbnail.
>> CHRIS: I feel like you could use this to clean pennies.
>> AMBER: [chuckles] I don’t think it’s that bad. I would recommend to our listeners to try it, maybe. [laughs]
>> STEVE: Or don’t. [laughs]
>> CHRIS: Yes, sorry, Surely, I’m not a giant fan. But maybe some of their other stuff is good.
>> STEVE: Yes, yes.
>> CHRIS: All right. We’ll see you all later. Thank you so much for being here. Bye, and we’re all going to smile and wave now because this is going to be a video on the internet.
[laughter]
>> AMBER: Yes. All right. Bye.
>> CHRIS: Thanks for listening to “Accessibility Craft.” If you enjoyed this episode, please subscribe in your podcast app to get notified when future episodes release. You can find “Accessibility Craft” on Apple Podcasts, Google Podcasts, Spotify, and more, and if building accessibility awareness is important to you, please consider rating “Accessibility Craft” five stars on Apple Podcasts.
“Accessibility Craft” is produced by Equalize Digital and hosted by Amber Hinds, Chris Hinds, and Steve Jones.
Steve Jones composed our theme music.
Learn how we help make thousands of WordPress websites more accessible at “EqualizeDigital.com.”