Accessibility and Whistleblower Lawsuits - Bashin v. Conduent settles
Can people with disabilities sue when government contractors fail to deliver accessible goods and services? Why yes, yes they can.
Golden three-dimensional human cartoon figure blowing into an oversized whistle attached to a neckloop while standing on a gavel pad with a gavel behind it.
This Article describes the inception, legal theory, and conclusion of the Bashin v. Conduent lawsuit.
Bryan Bashin, a blind camping enthusiast and extremely well-known leader in the blindness community, filed this lawsuit against the State of California for failing to enforce an accessibility clause in its contract with Xerox (parent company of defendant Conduent) for a six-year development of a new campground reservation system
This case, filed 3 1/2 years ago, was settled on December 1, 2023, just in time for the International Day of People with Disabilities.
The defendants paid $2 million, plus their legal fees, and they had to audit and retrofit the site at an unknown cost. So, it is probably in the range of $3.5 to $4 million for something that was foreseen and preventable. Mr. Bashin’s press release on LinkedIn concerning the settlement ended with commentary about the economic peril of making false accessibility claims.
I couldn’t agree more.
History and Details
Plaintiff Bryan Bashin 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, mainly because Conduent only used automated testing plus some checklists to meet its accessibility obligations. This is just one of the reasons I have a disdain for checklists; read the complete Article here.
Conduent’s claims that they ran two accessibility checkers with zero errors are dubious at best (and that is being kind). One of the allegations in the Bashin complaint said that:
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 automated checkers will unequivocally identify missing page titles, headings, 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
This case smells much 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. GNC’s accessibility expert was disqualified, which meant plaintiff Gomez’s accessibility expert testimony went unchallenged.
I am glad I didn’t have to defend the Gomez or Bashin cases. Clients that make stuff up are every lawyer’s curse. In addition:
Bashin is a third-party beneficiary. He was part of the public audience that intended to use the park’s reservation website.
With the enormous number of people with disabilities in the US, no one should have been shocked that people with disabilities would use the site to book a reservation.
Accessibility was explicitly called out in the Conduent contract, with multiple email exchanges back and forth between Conduent and 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 of a very long project rather than build it in from the beginning and
Conduent didn’t want to pay the 10K per day in liquidated damages for 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 leave accessibility to the end of a project. The longer the project, the worse the impact the delay causes. This is precisely what we can infer Conduent did since they deliberately excluded accessibility testing from its 42-page test plan, 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 to deliver printouts of test reports at a minimum (both manual and automated).
Consider doing your additional testing to validate the vendor’s work, which can range from spending a small amount of money to get a crowdsourcing company to have a couple of people with disabilities do a few hours of testing to having a comprehensive audit done by one of the larger accessibility consulting companies.
It won’t take long to figure out if the test results reported by the vendor are fantasy or reality.
3. Finally, never assume that disabled people don’t use your goods or services (in this case, parks). That is short-sighted, discriminatory, and offensive — the trifecta of badness.