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2019 Digital Accessibility Trends - Mid Year Update

  1. 1. Digital Accessibility: It’s All We Do 2019 Digital Accessibility Trends, Mid-Year Update Tim Springer July 11,2019 Level Access | Confidential and Proprietary
  2. 2. Housekeeping/Webinar Features • Real-time Captioning: Captions are provided by a third-party in the captioning panel. In the event we experience any issues with the pod, we will ensure that the recording of today’s session is closed captioned. • Today’s Session is Being Recorded: Link to slides, recording, and transcript will go out via email this week. • Questions: Time will be provided at the end of the webinar to answer questions. Please submit questions via the Chat Panel: (Keyboard: Command (⌘) + Shift + H) 2Level Access | Confidential and Proprietary
  3. 3. Introducing Our Speaker Tim Springer - Founder and CEO Tim Springer has dedicated nearly two decades to ensuring that technology will not only meet regulatory standards but also support real world use by individuals with disabilities. As a leader in the digital accessibility industry, he has provided compliance solutions to thousands of organizations as well as advised large corporations and Federal agencies on technical challenges and best practices required to successfully achieve accessibility. Tim was named named a White House “Champion of Change” in 2014. 3Level Access | Confidential and Proprietary
  4. 4. Topics 1. The Big Picture 2. Laws and Enforcement 3. Technology 4. The Accessibility Industry 5. Contacts 4 | July 11, 2019
  5. 5. The Big Picture Main stream trends driving accessibility
  6. 6. A Graying Globe People are getting older… and actively use technology! • The number of people worldwide aged 80 and over will quadruple to 400 million by 2050 • For the first time in history, there will be more people over the age of 65 than under the age of 1 • 20% of the U.S. population will be over 65 by 2030 “42% of adults ages 65 and older owning smartphones is up from just 18% in 2013.” “67% of seniors use the internet – a 55-percentage-point increase in just under two decades.” “45% of seniors under the age of 75 say they … use social networking sites, compared with 20% of those ages 75 and older.” Sources: United Nations World Population Prospects, U.S. Census Bureau’s 2017 National Population Projections, McKinsey & Co., Pew Research Center Tech Adoption Climbs Among Older Adults An Aging Nation: The Older Population in the United States, U.S. Census 6 | July 11, 2019
  7. 7. Disability Prevalence By Age 55.8% 37.5% 29.6% 24.7% 20.4% 13.8% 7.3% 5.3% 70.5% 53.6% 42.6% 35.0% 28.7% 19.7% 11.0% 10.2% 80 and over 75 to 79 70 to 74 65 to 69 55 to 64 45 to 54 24 to 44 15 to 24 With a disability Severe disability Source: U.S. Census Bureau, Survey of Income and Program Participation 7 | July 11, 2019
  8. 8. Omni-Channel Commerce • e-Commerce − 10.2% of all retail in Q1 2019 (U.S. Census Bureau) − 9.2% of all retail in Q1 2018 (U.S. Census Bureau) − Estimated by eMarketer to hit 14.6% worldwide by 2020 • Retailers and retail service providers developing strategies that are − Multi-device − Integrate physical and digital experience − Multi-modal • Will plaintiffs’ attorneys do the same? − Initial demand letters target mobile apps starting to be sent out 8 | July 11, 2019 Graphic: eMarketer (2016), NRF State of Retail (2019), U.S. Census Bureau (2017)
  9. 9. eCommerce Drives Down Prices • Prices at online stores are falling faster then prices in real world stores • This means access to online shopping and eCommerce becomes an economic advantage • Food for thought − Does the presence of Airbnb in a market drive down hotel room prices? − Does the presence of Uber drive down taxi prices? 9 | July 11, 2019 Graphic: Internet Trends Report (2018), Adobe Digital Economy Project
  10. 10. The nature of work is shifting • 1 in 3 Americans freelanced this year • Americans spend more than 1B hours per week freelancing • 64% of freelancers found work online • Number of freelancers is growing rapidly − 53.0M – 2014 − 56.7M – 2018 • Those jobs are increasingly available online and intermediated by technology platforms • Leads you back to a question we asked earlier – is accessible technology now an employment issue? 10 | July 11, 2019 Flexibility is cited as the largest, non-work cash related reason to be a freelancer Graphic: Freelancing in America Edelman Research, Upwork (2018)
  11. 11. To thrive in the economy we need access to learning opportunities • Massive growth in online training resources • Employees increasingly see training as the path to advancements • Freelancers far more likely to update skills rapidly than non-freelancers 11 | July 11, 2019 Graphic: Internet Trends Report (2018), Intuit
  12. 12. Laws and Enforcement The risk remains real
  13. 13. Americans with Disabilities Act (ADA) State of the Law • At least 2,258 digital accessibility cases filed in 2018 • Different judges, different cases, different rulings • Slim on precedent, principally fact based • Vast majority of cases settle • Appellate decisions starting to trickle out of the Ninth and Eleventh Circuits • Supreme court petition for review in Dominos v. Robles “We will continue to see a rise in litigation in federal court as we've seen over the last couple of years simply because there continues to be a lack of clarity with regard to the ADA requirements and I think until there's clear guidance this trend will continue.” - Olabisi Ladeji Okubadejo, Of Counsel, Ballard Spahr LLP “Each time a new [case] comes out, whichever side you’re on, you’re going to point to it and say that’s good news. Ultimately, cases are still coming down different ways depending on the judge.” - Kristina Launey, Partner, Seyfarth Shaw LLP 13 | July 11, 2019 Source: ADA Title III
  14. 14. ADA Lawsuits Overall Trends • ADA digital accessibility litigation continues to accelerate dramatically • Increased 210% YoY in 2017 and 177% YoY in 2018 • Still a small percentage of overall ADA Title III lawsuits • Number of plaintiff firms filing lawsuits continues to expand • Idea: The supply of lawsuits is governed by the number of active plaintiffs counsel in the space • Takeaway: We expect growth will slow but still be robust going forward 2722 4436 4789 6601 7663 10136 13135 17020 15 19 57 262 814 2258 3392 5094 0 2000 4000 6000 8000 10000 12000 14000 16000 18000 2013 2014 2015 2016 2017 2018 2019 2020 ADA Title III Lawsuit Breakout ADA Title III Lawsuits Web Accessiblity Lawsuits Source: ADA Title III 14 | July 11, 2019
  15. 15. What firms are responsible? 15 | July 11, 2019 • The top twenty plaintiff firms accounted for 74% of the lawsuits filed in 1H 2019 • Average top twenty firm – removing Cohen & Mizrahi LLP – filed 12 more cases in 1H 2019 than 2H 2018 • 28 lawsuits -> 40 lawsuits / firm • We’ve tracked another fifty-three firms active in filing lawsuits in 1H 2019 • As firms filing fewer suits catch up with the top twenty firms filling rates expect ongoing growth in the number of lawsuits • ~ 6000 lawsuits / year in capacity with the current set of plaintiff firms • Takeaway: We still see much room for growth in plaintiff firms filing suits of this type Plaintiff Counsel 2H 2018 1H 2019 Δ Cohen & Mizrahi LLP 296 85 (211) Gottlieb & Associates 53 85 32 Lipsky Lowe LLP 52 75 23 Scott R. Dinin P.A. 78 74 (4) Law Offices of Nolan Klein, P.A. 21 68 47 Shalom Law, PLLC 23 56 33 The Leal Law Firm, P.A. 71 50 (21) Law Office of Pelayo Duran, PA 23 45 22 Thomas B. Bacon, P.A. 19 45 26 Stein Saks, PLLC 0 38 38 Lee Litigation Group, PLLC 33 34 1 Law Office of Drew M. Levitt 39 32 (7) Pacific Trial Attorneys 12 29 17 Roderick V. Hannah, Esq., P.A. 33 27 (6) Shaked Law Group, P.C. 52 27 (25) Manning Law, APC 2 23 21 Garcia-Menocal & Perez, P.L. 32 20 (12) The Sweet Law Firm, PC 0 19 19 Lee David Sarkin 4 18 14 J. Courtney Cunningham PLLC 14 17 3
  16. 16. How Do These Lawsuits Work? Digital Accessibility Trends • Specific plaintiff attorneys, specific industries • The data suggests firms target lists of companies and file lawsuits in “waves” • Lawsuits typically only cite automated testing results directly generated from tools • Lawsuits discuss usability of the site by people with disabilities – Which is very different • Follow-on discussions limited to automated testing results Pick a consumer facing Industry Pull a list of all the companies Run a spider on the homepage of each company Send out a form demand letter with a summary of spider findings in it Wait for a response File a batch of lawsuits Takeaway: Automated testing results (good or bad) strongly correlated with risk of digital accessibility lawsuit filing 16 | July 11, 2019
  17. 17. ADA Digital Accessibility Lawsuits Target Industries • List of industries with raw count of lawsuits in 2H 2018 versus 1H 2019 − We look at 60 industries • Retail and consumer facing services continue to dominate − Drastic uptick in Hotels driven by three firms • As we start to reach saturation in some industries expect new industries to be opened • Takeaway: Outsize risk in industries that are (i) consumer targeted and (ii) relate to a physical place of business 17 | July 11, 2019 Industry 2H 2018 1H 2019 Δ Hotels 229 318 89 Retail 229 256 27 Consumer Products Manufacturers 148 159 11 Consumer Services 142 122 (20) Restaurants 73 51 (22) State and Local Government 53 48 (5) Food and Beverages 49 35 (14) Transportation 29 32 3 Real Estate 27 27 - Banking 22 15 (7) Hospitals and Healthcare Providers 28 12 (16) Media 13 10 (3) Financial Services 8 7 (1) Colleges 33 6 (27) Cultural & Religious Institutions 0 6 6 Business Services 5 5 - Education Services 10 5 (5) Other 4 5 1 Electronics 1 4 3 Telecommunications Services 3 4 1
  18. 18. Other Takeaways • Multiple lawsuits or demand letters against a single organization are common − Winner in our database had five lawsuits filed in the last 12 months − We estimate a roughly 30% chance once you’ve been sued you’ll be sued again in a year • Bigger the brand the bigger the risk • Lawsuits tend to target brands and specific properties − Multi-brand entities are often targeted many times in a year − Multi-property entities are often targeted many times in a year • Expertise matters – you need to have an actual, qualified expert engaged if you expect to end up in court • ADA Title I litigation may occur against technology providers – more news to come 18 | July 11, 2019
  19. 19. Department of Ed OCR Complaints • Challenge in getting data on this − No DoED OCR reports in current administration − Last DoEd report in fiscal 2016 − No data published for fiscal 2017, 2018 or 2019 • Since October 1, 2013 901 resolution agreements or letters referenced WCAG − No change in this number since January 2019 • Note: There’s a lot of bad data out there confusing OCR investigations and ADA lawsuits so proceed with caution 4183 4555 4961 4980 4806 5936 6366 6828 3651 4019 5349 9 7 88 88 25 593 1273 2048 1460 2009 2139 9 7 8 16 28 55 233 561 532 914 973 0 1000 2000 3000 4000 5000 6000 7000 8000 2011 2012 2013 2014 2015 2016 2017 (EST) 2018 (EST) 2019 (Feb) 2019 (July) 2020 (EST) Accessibility and Disability Related Issues All Disability Complaints Technology (Est) Web (Est) Takeaway: We expect enforcement by DoED OCR to be limited on digital accessibility issues 19 | July 11, 2019
  20. 20. Technology Accessibility goes mainstream
  21. 21. Lots of people play video games • 164M adults in the US play video games • The average of a gamer is 33 years old • 63% play video games with others • 2.5B worldwide − China is the largest gaming market in the world • U.S. consumers spent $43.4B on video games last year − ~100B Worldwide Source: Entertainment Software Association (ESA), U.S. Census Bureau, JD Hancock, Pew Research 21 | July 11, 2019
  22. 22. Virtual and augmented reality • Helping people on the autism spectrum recognize emotions • Providing facial recognition for people who are blind or visually impaired when combined with AI • Highlight walking area and path for users with low vision • Overlaying tutorials or instructions for people with cognitive and learning disabilities • Providing cues and steps to assist people with memory challenges 22 levelaccess.com | (800) 899-9659 | info@levelaccess.com A great assistive technology platform?
  23. 23. Rise of Virtual Assistants • Conversational, computer-generated personas provide contextual voice- or text-based information to users • In everything from speakers and glasses to cars and kiosks • Combine natural language processing with domain knowledge and AI • Benefits for IoT, searches, shopping, and third party skills 23 Siri, Alexa and Cortana take over
  24. 24. The Accessibility Industry How our industry is maturing
  25. 25. The Survey • Recently released The State of Digital Accessibility 2019 report − Developed in partnership with G3ict • Surveyed 550 digital accessibility professionals • Wide range of industries, roles and organization sizes 25 levelaccess.com | (800) 899-9659 | info@levelaccess.com
  26. 26. The Industry Wants Standards • Over 85% want the ADA updated to include specific regulations for digital accessibility • 54.6% said they are accelerating their accessibility plans due to the current litigation trends 26 What legal and compliance respondents said
  27. 27. Where Accessibility Lives 27 Accessibility is Everyone's Job– but someone has to own it.
  28. 28. Accessibility as a Value • Over 65% said it was “very important” for them to be compliant with accessibility standards in their industry − Competitive impact of inclusive products in marketplace − Acknowledgement of accessiblity as core value 28 Rather than a response to legal risk…
  29. 29. Inclusive Maturity • 72% of companies with 5,000 employees have a dedicated professional overseeing accessibility • 31% ask employees to be IAAP certified and 47% would consider it 29
  30. 30. WCAG 2.1 • WCAG 2.1 adoption is proceeding at a measured pace − Disability rights advocates starting demand it in complaints and settlements − Not currently slated to be a rolled into Section 508 − Highly likely to be included in EU standards • WCAG 2.1 criteria impact design of products • Clearly expands testing to automatic variations of pages 30 64% are already adopting WCAG 2.1 guidelines or plan to in the near future
  31. 31. Challenges for Accessibility Programs 1. Incorporating accessibility earlier in the development lifecycle − #1 challenge for product, UX, and engineering folks 2. Budget for accessibility program − High on list for each role 3. Training − Majority of developers ranked their team as beginners and some groups such as marketing had almost no a11y training 4. Too many content creators – can’t monitor everything − Biggest challenge for higher education 5. Development time − Competing needs for time 31 The Top 5 Themes levelaccess.com | (800) 899-9659 | info@levelaccess.com
  32. 32. Testing includes People with Disabilities • Nearly half of product development teams do not conduct usability testing by people with disabilities • Larger organizations more likely to perform testing with users that have disabilities 32
  33. 33. Connect with us. @LevelAccessA11y linkedin.com/company/level-access facebook.com/LevelAccessA11y/ 1.800.889.9659 | info@levelaccess.com | www.levelaccess.com Digital Accessibility: It’s All We Do Thank You Contact Us Tim Springer Founder and CEO tim.springer@levelaccess.com Level Access | Confidential and Proprietary
  34. 34. Appendix - The EU Digital accessibility for products and services in the EU
  35. 35. European Union Public Sector Law • Web and app accessibility required in EU public sector • Rule formally approved in July 2016 by European Council and entered into force December 22, 2016 • Requires public sector websites and mobile applications meet European accessibility standards • Beings the process of normalizing access requirements across the EU − More information: access our on-demand webinar, The EU Directive on Digital Accessibility 35 | July 11, 2019 Background & Overview Source: European Council, “Accessible websites and apps for all: Council adopts first-ever EU-wide rules”, July 2016
  36. 36. European Union Public Sector Law, Cont’d Background & Overview • Requirements refer back to European procurement Standard EN 301 549 − European Telecommunications Standards Institute (ETSI) recently revised and harmonize EN 301 549 with WCAG 2.1 AA to cover technical requirements for mobile apps (v 2.1.2 released August 2018) • All websites created after September 23, 2018 have to conform by September 23, 2019 • Existing websites will have to conform by September 23, 2020 • Mobile applications will have to be accessible by June 23, 2021 • Ideally unification of all EU requirements by 2022 • Expect private sector coverage to harmonize with these requirements − Recommended but not required by EU law • Takeaway: Expect Section 508 like requirements to seep into EU public sector procurements over the coming years Source: European Council, “Accessible websites and apps for all: Council adopts first-ever EU-wide rules”, July 2016 36 | July 11, 2019
  37. 37. European Accessibility Act • Approved by parliament on 13 of March 2019 • Final text still to be approved by council • Once published in Official Journal nations have 3 years to transpose into national law and 6 years before application of standards • Exceptions for small micro enterprise <10 employees or $2 million in revenue
  38. 38. European Accessibility Act • Final adoption by EP is expected by April 2019 • Two years to transpose • Six years to enter into force • Takeaway: Expect EU wide coverage for digital accessibility by 2025 Coverage • Computers and operating systems • ATMs, ticketing and check-in machines • Smartphones • TV equipment related to digital television services • Telephony services and related equipment • Audiovisual media services such as television broadcast and related consumer equipment • Services related to air, bus, rail and waterborne passenger transport • Banking services • E-books • E-commerce 38 | July 11, 2019

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