Transcript ADA Title III - SSB BART Group

Defending Digital
Accessibility
Lawsuits
Kristina Launey
Seyfarth Shaw LLP
Tim Springer
SSB BART Group
Agenda
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Legal Concepts
Technical Concepts
Litigation Lifecycle
Anatomy of a Settlement
Key Takeaways
Legal
Concepts
Legal Focus - ADA
Americans with Disabilities
Act (ADA)
• Title I - Employment
• Title II – State & Local
Government
• Title III - Public
Accommodations
• Statutes, Regulations, Court
Decisions
• Accessibility Guidelines
• Settlements and Consent
Decrees
ADA Title III
Applies to public accommodations
• Must provide auxiliary aids and services necessary to ensure
equal access to their goods and services and to ensure
effective communication
– Includes accessible electronic and information technology
ADA Title III
DOJ Position
• DOJ 2010 ANPRM Statement – Websites that provide goods
and services must be accessible to people with disabilities
unless the goods and services are available in some other
equivalent manner
• DOJ has not issued a regulation adopting the legal standard
for what constitutes an “accessible” website
• Delayed proposed regulation now expected in June 2015
• DOJ has moved forward with enforcement based on WCAG
2.0 Level AA as the technical standard for accessibility
ADA Title III
Court Decisions
• Courts have held that the website of a business with a brick &
mortar presence is covered under the ADA
• First Circuit & DOJ position – No brick & mortar presence
required for coverage
• Ninth Circuit position – Website must have a nexus to brick
and mortar location to be covered under the ADA
• No court decision on whether WCAG 2.0 AA is the
appropriate standard for accessibility because the cases
settle as soon as the courts determine that the website is
covered under the ADA
• No decision on ADA coverage of mobile applications
ADA Title II
Applies to state and local governments
• Equal access to programs, services, or activities required
unless doing so would fundamentally alter the nature of the
programs, services, or activities or would impose an undue
burden
• 2003 DOJ technical guidance says websites should be
accessible or there must be an alternative means of access
that provides an “equal degree of access”
• DOJ proposed rule for state and local government websites
was due out at the end of 2014
ADA Title I
Applies to all employers with more than 15 employees
• No formal position taken by EEOC about whether online
application websites must be accessible. In an 2/17/03
informal letter, the EEOC said that accessibility of online
application systems was an “emerging issue” but stressed
that employers must make reasonable accommodations
upon request
State Enforcement Actions
• State agencies and Attorney General Offices have exerted
pressure on businesses to make websites accessible under
state non-discrimination statutes.
• New York and Massachusetts AG’s offices have been active
in this area in the past.
• State agencies pay attention to federal ADA mandates and
will seek to enforce them through their own state
mechanisms.
Other Notable US Laws
• Rehabilitation Act
– Section 503 - Federal Government Contractors &
Subcontractors
– Section 504 - Recipients of Federal Funding
– Section 508 – Federally purchased EIT
• Air Carrier Access Act (ACAA)
• 21st Century Communications and Video Accessibility Act of
2010 (CVAA)
Technical
Concepts
What is Digital Accessibility?
The practice of making websites, mobile applications, and
other online systems usable by people with disabilities
• When sites are correctly designed and developed to be
accessible, all users can have equal access to information
and functionality.
• A measure of comparative utility
What’s Covered?
IT Systems
• Websites, Web
Applications and Mobile
Web Assets
• Software Applications
• Mobile Apps for IOS &
Android
• Both public and employee
facing systems pose risk
for an organization
Electronic Documents
• Adobe Acrobat (PDF)
Documents
• Microsoft Office Documents
• eBooks
Key Technical Standard – WCAG 2.0
• Published by W3C
• A, AA and AAA conformance
levels
• AA conformance basis of virtually
all regulations, settlements and
enforcement actions
• Includes all A and AA requirements
• Most private sector organizations
focus on AA conformance
Litigation
Lifecycle
Lifecycle Roles
Attorney & Consultant
Attorney
• Provides advice on legal obligations under federal and state
statutes, regulations, and case law
• Oversees privileged review of websites done by consultants
• Represents clients in actual or threatened lawsuits, government
investigations & enforcement actions, & structured negotiations
Consultant
• Provides technical expertise to help businesses assess their
websites and solutions for accessibility
• Provides software & training
• Develop strategies for minimizing risk & maximizing opportunity
Acquiring Counsel
How to start a conversation with counsel to mitigate
litigation risk involving digital accessibility
• Proactive or remedial?
• Choosing counsel
• Creating an attorney/client relationship
Addressing Complaints
Considerations in developing a response to digital
accessibility complaints
• Evaluate complaint
– specific or global issue?
– informal or formal complaint?
• Consult attorneys & experts
• Involve company stakeholders
• Assess and evaluate risk/exposure
– Evaluate applicable law
– Assess state of websites and other technologies
• Develop strategy for desired resolution – can matter be resolved
informally, or are formal settlement negotiations or litigation
necessary?
Anatomy of a
Settlement
Overall Approach
• Looked at five recent
settlements
• Apply DAMM framework to
analyze settlement
requirements
• Provide guidance for proactive
development of program
DAMM Dimensions
• Policies and Standards
• Governance, Risk Management,
and Compliance (GRC)
• Communications
• Legal and Regulatory
• Fiscal Management
• Development Lifecycle
• Testing
• Support and Documentation
• Procurement
• Training
Policies and Standards
Core Conformance Requirements
All required WCAG 2.0 AA Conformance
• General web sites
– Time frames: 10 months – 2 years
– May carve out certain challenging WCAG aspects
• Mobile assets (sites, apps)
– Time frames: within 1-2 years; as developed
• Plug-in content
– Time frames: vary
– Default is natively accessible content v. alternatives
• Third party content
– Time frames: vary, often from day one
– Required in both contractor and procurement processes
– Ads and non-functional aspects carved out
Policies and Standards, GRC
Internal Accessibility Policy
• Create
• Distribute
• Implement
Web Accessibility Coordinator(s) or Team
• Defined knowledge requirements
• Defined reporting requirements
• Performance reviews required
Expert
• To aid in implementation
• Internal or external
Oversight Steering Committee
• To monitor and own implementation
Communications, Legal and Regulatory
Public Accessibility Statement
• Publicly available, conspicuously
linked, accessibility page
• Overview of accessibility
approach
• How to report accessibility
issues
– E-mail and telephone
generally required
– Web form nice to have
• If relevant, how to request
alternatives
Reporting Requirements
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•
•
Audits
– Annual
– By third party expert
Reports
Meetings
Testing
Automatic Testing
• Select and meaningfully deploy an automated testing tool
User Testing
• Various timeliness requirements
QA Integration
• Require testing protocols to be integrated into QA process
Support and Documentation
CSR Training
• Training for customer service representatives to properly
handle and escalate issues related to accessibility
Telephone Service
• Provide alternative telephone service for VI customers
Alternative Format Request
• Alternatives available on request
Procurement, Training
Third-Party Systems
Development Team Training
• Third-party systems
procurement must consider
accessibility
• Provide web accessibility training
to development and content team
members
• Variance on content v. application
function – generally content is an
expansive term
• Mobile apps covered in most cases
• Annual refresh
• As reasonably necessary
• Job transition
Contractor Conformance
• Contractors must conform to
accessibility policies and
standards
Contractor Evaluation
• Evaluate employee and
contractor performance based
on successful web access
programming
Secondary Dimensions
Development Lifecycle
Fiscal Management
• Accessibility Bug Fix
Prioritization
• Not explicitly mentioned
• Commitments imply budget
– Requires accessibility bugs
to be handled with the same
priority as other bugs
Key
Takeaways
Proactive Measures
• Contact your legal counsel to discuss your risks
• Secure third party technical expertise to help guide you
through the process
• Develop an enterprise accessibility roadmap and policy
framework
• Audit and test your website to determine the baseline level of
compliance
• Start building in accessibility proactively
• Conformance standard is WCAG 2.0 AA
• Assume web and mobile assets covered
• Training!
Complaint Response
• Secure counsel
• Get a technical expert
• Work with counsel and expert to:
– Assess state of conformance of websites, mobile apps, etc.,
technically and legally
– Status of current training, policies, procedures – if any
– Assess defenses and risk tolerance
– Involve key company stakeholders
– Develop strategy for response to complaint
Questions?
Presenters
Kristina M. Launey
Partner
Seyfarth Shaw LLP
(916) 448-0159
[email protected]
Timothy Stephen Springer
Chief Executive Officer
SSB BART Group
415.624.2705 (o)
[email protected]
Appendix
Current Legal Requirements
Section 503 of the Rehabilitation Act
Applies to federal contractors and subcontractors
• Contractors “encouraged” to make information and
communications technologies accessible, even absent a
specific request for accommodation
• If technology not accessible, contractor must provide
“alternate means” for accessing job information and applying
that is “timely”
Current Legal Requirements
Section 504 of the Rehabilitation Act
Applies to recipients of federal funding
• DOJ 2010 ANPRM Statement: “[t]here seems to be little
debate that the websites of recipients of federal financial
assistance are covered by Section 504 of the Rehabilitation
Act”
Current Legal Requirements
Air Carrier Access Act (ACAA)
• 2013 Final DOT Rule – Airlines that
operate at least one aircraft having a
seating capacity of more than 60
passengers must make the core
functions of their website accessible by
12/12/15; remainder by 12/12/16
• 25% of kiosks must be accessible by
12/22/22
• Mobile applications not covered by rule
Current Legal Requirements
CVAA
• Requires that most communications and video programming
previously broadcast that is rebroadcast over the Internet be
provided in an accessible manner to individuals with
disabilities
• Enforcement by FCC only – no private cause of action
Example Timeline
The H&R Block Case
• April 2013 – National Federation of the Blind (NFB) and two
taxpayers who are blind file suit against H&R Block in
Massachusetts District Court
– Complaint alleged company’s online tax services and Web sites were
not accessible and in violation of the ADA
• December 2013 – Civil Rights Division and the U.S. Attorney’s
Office for the District of Massachusetts filed a complaint with DOJ
in intervention in the lawsuit to enforce Title III of the ADA
• March 2014 - District of Massachusetts enters into consent decree
with H&R Block (http://www.ada.gov/hrb-cd.htm)
– Under the terms of the five year decree, H&R Block’s website, tax
filing utility and mobile apps will conform to the Level AA
Success Criteria of the WCAG 2.0
Representative Settlements
Who
Plaintiff’s Counsel
Year
H&R Block
DoJ & NFB
2014
Peapod
DoJ
2014
Safeway
Dardarian & Feingold
2013
Wellpoint
Dardarian & Feingold
2014
WDPRO
Feldman
2012