Defending Digital Accessibility LawsuitsKristina Launey

Seyfarth Shaw LLP

Tim Springer

SSB BART Group

Agenda

• 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 IIIDOJ 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 IIICourt 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 RolesAttorney & 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 StandardsCore 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 • 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 • Third-party systems

procurement must consider accessibility

Contractor Conformance• Contractors must conform to

accessibility policies and standards

Contractor Evaluation• Evaluate employee and

contractor performance based on successful web access programming

Development Team Training• 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

Secondary Dimensions

Development Lifecycle• Accessibility Bug Fix

Prioritization– Requires accessibility bugs

to be handled with the same priority as other bugs

Fiscal Management• Not explicitly mentioned• Commitments imply budget

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. LauneyPartnerSeyfarth Shaw LLP(916) 448-0159klauney@seyfarth.com

Timothy Stephen Springer Chief Executive OfficerSSB BART Group 415.624.2705 (o) tim.springer@ssbbartgroup.com

Appendix

Current Legal RequirementsSection 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 RequirementsSection 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 RequirementsAir 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 RequirementsCVAA

• 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 TimelineThe 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