Proposed Outcomes For NFB Versus H&R Block

In April, the National Federation of the Blind filed a lawsuit against H & R Block, the AMerican tax preparation giant over their failure to comply with the Americans with Disabilities Act. NFB asserts that Block, by having a CAPTCHA with no audio alternative prohibits blind people from using their web site, hence, is out of compliance with the ADA.

I agree entirely with the NFB assertion in this case, a web site with an inaccessible CAPTCHA is clearly not “making reasonable accommodations” and, therefore, is in violation of ADA. Furthermore, having such a barrier to entry is discriminatory, segregationist and is a violation of the fundamental human and civil rights of the population of people with print impairments.

The Lawsuit Strategy

I disagree with the NFB strategy of using a lawsuit to promote accessibility in this case. In October of this year, the US Federal Communications Commission (FCC) will start enforcing the 21st Century Video and Communication Accessibility Act] of 2010CVAA), legislation that permits this agency to fine inaccessible web sites and some other causes of poor accessibility for people with disabilities up to $100,000 per day for being inaccessible. Thus, we now have an enforcement body with specific rules governing their practices to handle these problems for the community. With CVAA, a person who feels that a web site or certain types of application maintains the discriminatory practices of failing accessibility, can file a complaint and an regulating body can handle the corrective action.

Meanwhile, the US Department of Justice (DOJ) has ruled that ADA applies to web sites and, in their action involving Louisiana Tech, they forced the university to make its online teaching tools accessible.

Plain and simply, there is no good reason for NFB to take such legal action against a US corporation unless their goal is to shakedown the company for a large cash settlement. In the history of NFB lawsuits regarding web accessibility, suits against, among others, AOL, Target, Amazon and Florida State University only one (FSU) resulted in a requirement for improved accessibility by the defendant. In the other cases, NFB got large cash settlements and, as far as any publicly available information published by NFB or elsewhere, none was actually spent on any meaningful actions taken on behalf of accessibility. Large cash settlements filling the NFB coffers with lots of dollars does not seem to lead to improved accessibility for anyone.

NFB v. H&R Block can, however, have results positive for the community of people with vision impairment if NFB refuses to accept cash instead of accessibility or a legal precedent as an out come.

A Rosa Parks Moment

In one of the most famous and important legal actions in civil rights history, Rosa Parks, an Alabama seamstress and civil rights activist, took a seat at the front of a bus in Birmingham, Alabama, where doing so was then illegal for an African American. The civil rights legend and later US Supreme COurt Justice, Thurgood Marshall represented Parks and fought the case all of the way to the US Supreme COurt where they won the case and made legal segregation illegal in the US.

What if Marshall had instead accepted a cash settlement from the Birmingham bus company? Perhaps, today, Rosa Parks might be remembered as a wealthy black woman who cashed in a settlement and, perhaps, legal segregation would continue.

Does NFB have the courage and conviction to refuse dollars and allow Block to exhaust all of its appeals and allow a court decision to make technological segregation against our population illegal forever? I don’t think so. Mark Maurer is no Thurgood Marshall and NFB is no NAACP. The history of NFB lawsuits has kept blind people and people with other print impairments from having our Rosa Parks moment while putting a whole lot of dollars into its bank account.

Could A Settlement Help?

In NFB versus Target, the total cash settlement came to $6 million. Reportedly, $500,000 of this went directly into the pockets of blind people in California who applied to be part of the class that would receive compensation. Of the remainder, it is my understanding that NFB received more than $2 million and, to my knowledge, has never published a statement saying how this money would be spent. As far as I can tell, NFB did not spend this in any manner useful to furthering accessibility but as NFB is so incredibly secretive with its budgets, one can’t really tell how the money was disbursed.

A Proposed Settlement

As NFB v. Target resulted in a $6 million settlement, I’ll use that as a fair value for punitive damages against H&R Block. Block is clearly discriminating against this population and should be punished for such a blatant violation of civil rights law.

I suggest the dollars be spent as follows:

1. The legal fees and court costs of NFB and its fellow plaintiffs should be paid. Organizations and individuals who bring such lawsuits, especially suits with such obvious merit, should not be punished financially for taking such actions. Let’s say that $150,000 is fair for costs and fees.
2. Set up an independently managed endowment for accessibility that will spend the money as such:

• No more than 5% of the endowment in any given year can be spent on administration costs. If Save the Children can spend less than 5% of its dollars on overhead, certainly this team can do so as well.
• Fund free software accessibility projects like NVDA and Orca with 45% of the money spent. This can be done in either lump sum grants to the foundations that develop and maintain these programs or by directly hiring programmers to achieve specific goals.
• Spend the remaining 45% building tutorials, documentation, seminars and other educational materials teaching the mainstream world how to make their software and web sites accessible. Today, sending a web developer to find “how to” information on accessibility leads them to dozens of inconsistent and sometimes incompatible sources they will find on Google. While WCAG 2.0 is an excellent standard, most people, including developers and site designers, find its language difficult so someone needs to find a way to teach its details in a more friendly manner.

Why NFB Shouldn’t Get the Dollars

As I wrote above and have written many times before, the National Federation of the Blind doesn’t seem to spend its dollars in a manner that does anything I can discern of value to the community and the greater goals of universal accessibility. They do, however, throw money after boondoggles like a blind capable automobile when they could have partnered with Google for far less money. NFB maintains a luxurious executive dining room that sports one of the largest and most expensive wine and cordial lists I’ve ever encountered. Mark Maurer, NFB president, lives in a mansion owned by NFB rent free. Few other blind people enjoy these luxuries and, more importantly, having such luxuries in an organization supported by contributions from members with little financial wherewithal is both decadent and useless to the cause of people with vision impairment.

I think NFB is mostly out-of-touch with the needs of its rank and file. Having received 211 emails from people in reaction to my “Death Of” and “Deterioration” articles, mostly about how fundamental access technology has failed them, how they cannot secure employment and how they’ve no idea where to turn demonstrates such a failure of leadership that NFB simply cannot be trusted to do the right thing.

Conclusions

On the NFB v. H&R Block case, I conclude:

• This lawsuit was a bad idea from the beginning. With CVAA enforcement going online in two months and DOJ agreeing that ADA applies to the Internet, there is no reason to sue a corporation over accessibility until other legal strategies have been exhausted.
• If this lawsuit does need to go forward, the best outcome will be a Rosa Parks “moment” for the community of people with print impairments. There is no good reason not to try to get a court judgement and allow for all appeals to be exhausted in order to set such a precedent. Doing anything less demonstrates a lack of courage and conviction while also showing greed as a motive instead of accessibility.
• If a settlement must happen, the dollars should be placed into a specific endowment to be spent on accessibility development and training and not be used for any other reason.
• NFB cannot be trusted to manage the settlement dollars.