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Mitigating Risk of Website Accessibility Lawsuits


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Attempts to enforce ADA website compliance continue and may be increasing in some business verticals with the effects of the pandemic and the push to an all-on-line era. The need to make your websites more accessible to all is not a matter of if, but rather when. Accessible360’s Co-founder has been teaching CLE classes for several years, come learn what you can do now to make websites and apps available to more people, and how to reduce your risk.

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Mitigating Risk of Website Accessibility Lawsuits

  1. 1. Mitigating Risk of Accessibility Lawsuits Michele Landis Co-Founder Accessible360 PP T
  2. 2. What Is Digital Accessibility?
  3. 3. The inclusive practice of removing barriers that prevent interaction with websites, apps and software systems for people with disabilities. Accessibility in the Digital Age 4
  4. 4. People With Disabilities * CDC * The Global Economics of Disability - Fifth Quadrant Analytics 61 mm US Population with Disability 1/3 US families have at least one member with a disability 1 in 10 men are color blind $544 billion Spending power 1 B Disability affects more than one billion people worldwide
  5. 5. Visual Types of Disabilities Cognitive Physical Auditory
  6. 6. Assistive Technology Digital content correctly designed and coded, offers access to information & functionality via the assistive technology devices that people with disabilities use to gain access.
  7. 7. Need for Digital Accessibility is real Inaccessible HR portals exclude millions of people searching for jobs Parents & Caregivers with Disabilities can’t access critical information Students can’t reach their full potential Aging workforce wants to remain in jobs Federal legal requirements in heath care, education & government General public is demanding equitable access
  8. 8. Business Case for Accessibility Social Responsibility Maximize Profits Financial Legal Risk • Any plaintiff firm can sue any company at any time • You are not safe or “done” just because you settle with one plaintiff • Digital Accessibility is a business compliance issue with real risks – take action
  9. 9. W3C The World Wide Web Consortium is an international community that develops open standards to ensure the long term growth of the Web. WCAG Web Content Accessibility Guidelines
  10. 10. Information and UI components must be presentable in ways users can perceive WCAG 2.0 Principles UI components & navigation must be operable by those using assistive technology Information and UI must be understandable to people with disabilities Content must be interpreted consistently and reliably by users and assistive technologies UNDERSTANDABL E OPERABLE PERCEIVABLE ROBUST
  11. 11. Section508 Compliance •1998 to 2017 • Very specific about issues • Severely limits ways to fix • Overly prescriptive and rigid WCAG 2.0 AA • Clear guidelines • Excellent supportive documents • Not only one way to fix code • Future-proof • Flexible and adaptable What are the guidelines? Jan. 2017: Section508 refresh notice Jan. 2018: WCAG 2.0 AA in effect! WCAG 2.1* AA •Builds on 2.0 •3 brand new guidelines •17 more; 12 tests are level AA •Addresses input modalities that did not exist when WCAG 2.0 was released Pointer Accessible Additional Sensor Inputs Speech * Not all Companies need these new elements tested, simply because they are not present on their sites / products and Clients need to verify the presence of these, as it is not always obvious or apparent. Once Identified, they can be tested.
  12. 12. The Law
  13. 13. Americans With Disabilities Act of 1990 ADA Title III, Public Accommodations “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S. Code § 12182.
  14. 14. ADA Title III. Public Accommodations. Discrimination. Includes failure to make reasonable modifications in policies, practices or procedures to make a good, service, or item available, unless the modification would fundamentally alter the nature of the goods, services, privileges or accommodations. Discrimination. Includes failure to take steps necessary to ensure that no individual with a disability is excluded, denied service, or otherwise treated differently because of the absence of auxiliary aids and services, unless such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage or accommodation being offered or would result in an undue burden. 42 U.S. Code § 12182
  15. 15. Public Accommodations WHAT IS THE SCOPE OF PUBLIC ACCOMMODATIONS COVERED UNDER TITLE III OF THE ADA? Generally, courts have held that a website of a public entity is also covered by Title III of the ADA and in cases of online-only businesses, it is also widely accepted after court rulings. Companies now understand it is possible to allow everyone into the digital audience to access their goods and services.
  16. 16. What is a “Public Accommodation”? 50+ types of businesses Full list at: 42 U.S.C. § 12181 Hotel Theaters Bowling Alley Restaurant Bars Bank Hospital Health Club Lawyer’s Office Real Estate Office Library Shopping Center Health Clinic Dry Cleaners. Government Offices Senior Center Sport Stadiums Stores & Shops Credit Union Automotive Garage Pharmacy
  17. 17. • ADA Title I Employment • ADA Title II Public entities • ADA Title III Public Accommodations (federal, state and local government, medical, public education and libraries) (stores, banks, theaters, bars, restaurants, etc.) Americans With Disabilities Act
  18. 18. Section 504 Federal law protects the rights of individuals with disabilities in programs and activities that receive Federal receive Federal financial assistance Section 508 Requires Federal agencies to make their electronic & information technology (EIT) accessible to people with people with disabilities As amended in 1998 The Rehabilitation Act of 1973 Ammendments
  19. 19. Accessibility and the Law Rehabilitation Act of 1973 How the law is applied to the digital Americans with Disabilities Act of 1990 Title I: Employment Title II: Public Entities Title III: Accommodations A11y Global Initiatives World Wide Web Consortium (W3C) Web Accessibility Initiative (WAI) Web Content Accessibility Guidelines (WCAG 2.0 & 2.1) 21st Century Communications & Video Accessibility Act ( CVAA) … FCC
  20. 20. States Example: California CIVIL CODE - CIV DIVISION 1. PERSONS [38 - 86] ( Heading of Division 1 amended by Stats. 1988, Ch. 160, Sec. 12. ) PART 2. PERSONAL RIGHTS [43 - 53.7] ( Part 2 enacted 1872. ) 51.5. (a) No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or of the person’s partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers, because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics
  21. 21. Accessibility Trends and the Law 2008 - TARGET 2011 – WELLS FARGO 2013 & 2015 - NETFLIX $6,000,000 + $3.7 Million in Fees $16 Million 2 different verdicts 2 different Federal Courts
  22. 22. National Federation of the Blind v. Target, 452 F.Supp.2d 946 (N.D. Cal., 2006). Complaint: website is inaccessible to the blind and therefore violates the ADA and state law. On Target’s motion to dismiss: Claims that has a nexus to goods and services offered in store survive Court grants dismissal of claims to the extent does not impact enjoyment of goods and services offered in store Case ultimately settled. Target agrees to payment and site improvements.
  23. 23. Cullen v. Netflix, No. 13-15092 (9th Cir., unpublished, 2015) Contrast: National Association of the Deaf v. Netflix, 869 F. Supp.2d 196 (D. Mass. 2012). And Access Now v. Blue Apron, New Hampshire, Case # 1:17-cv-00116-JL (Nov. 2017).
  24. 24. June 2017 WEBSITE ACCESSIBILITY LAWSUITS & DEMAND LETTERS KEEP COMING WITH NO SIGN OF LETTING UP 1. First Trial of a website accessibility case 2. Judge ruled: WCAG 2.0 AA is the standard 3. Accessibility is not a financial burden 4. Responsible for Compliance of 3rd party vendors April 2017 Judge with the most cases on docket rules ADA does apply CONFIDENTIAL August 2017 Judge Weinstein's “Science Day” Trial in California Judge rules in favor of defendant Section508 Compliance Revised WCAG 2.0 AA in effect January 2018 June 2019
  25. 25. Robles v. Dominos Pizza, Case No. CV 16- 06599 SJO (March 20, 2017, Cent. Dist. Cal.).
  26. 26. Bottom Line On Litigation: • 90% (+) of Cases settle in 2 days - 6 months • Most but not all cases survive a defense motion for summary judgement • Legal arguments continue to evolve
  27. 27. Office of Civil Rights Department of Justice – DOJ Demand Letters Lawsuits In Federal or State Courts Class Action • Engage independent accessibility consultant for an Audit • Websites & apps to meet WCAG 2.0 AA or WCAG 2.1 AA • Obtain a Letter of Conformance from Accessibility Auditor •Technical Training for development teams • Continue to Monitor websites to maintain compliance • Designate Accessibility Coordinator from the Dev Team • Publish an Accessibility Statement (landing page) • Solicit feedback on the websites regarding accessibility • Offer Improved telephone support to users Enforcement: CONFIDENTIAL The Common Elements of DOJ Settlements
  28. 28. Things to Consider VPAT
  29. 29. • Your competition is paying attention • Live User testing needed, not just automated scanning tools • New websites are including accessibility during development • Companies are holding developers & 3rd party agencies accountable for accessibility • Technology companies not completing their own VPAT ~ getting an auditor to do this • Settling one lawsuit does not prevent another, you really must fix your digital products Trends in Accessibility
  30. 30. Becoming Digitally Accessible
  31. 31. 34 Live-User Audits The only way to determine true accessibility & compliance Other “solutions” Add-on Applications, Overlays and Toolbars In-house expertise Some organizations believe they have the knowledge So-Called “Separate but Equal” sites ~ Scandinavian Airlines Be wary of the costs of this option- very expensive & Unnecessary: just fix the site you have why pay for 2 ? CONFIDENTIAL Methods
  32. 32. Scanning Tools Alone Leave You Vulnerable CONFIDENTIAL You can waste: time / money / resources Keep in mind: Only a portion of WCAG Success Criteria can be Scanned Reports are not typically informative or accurate enough for developers to use for remediation All return some false positives and lack the recommendations necessary to fix issues
  33. 33. Updated – More direct messaging from US Gov’t than in the past. CONFIDENTIAL Scanning Software – U.S. Government
  34. 34. Ask Yourself
  35. 35. At Your Organization • Is there an equitable access policy for your digital products • Can a patient with a disability access their records, schedule appointments, pay bills independently • Can community members with a disability find the information needed on your goods and services • Could all potential and current students ( & parents / care givers ) find assignments, grades, etc.
  36. 36. If you’re building an app • Have you planned to incorporate accessible design • Are you aware of the proper ways to test during development • Are there sources for accessibility testing available in your community • If you don’t know for sure if your product is offering equitable access find out
  37. 37. Platform Providers • Do you have a current VPAT • Have you had your product audited • If you need help, get it from a reliable vendor • If planning a revision or upgrade, now is the time • SaaS may be a place to start but it is not the answer for your full testing needs • Every digital product that gets bolted on or added to a website should be accessible
  38. 38. During design • Plan to create an accessible experience • Accessible site architecture & accessible frameworks • Use HTML5 best practices for accessibility • Review designs with skilled Accessibility technicians so you know you are starting with a solid foundation During development • Make accessibility part of all development processes and incorporate live use testing • Lower development costs when done congruently with new website builds • Accessible sites provide better search engine optimization Choose an approved platform provider • Reduced risk if you select a vendor who is going about accessibility the right way on their core code • Be wise in your selection as the decision you make today needs to stand the test of time • Understand a Letter of Conformance on a platform does not include the entirety of your website if you alter or change it New Accessible Platforms CONFIDENTIAL
  39. 39. WCAG Highlights Provide alt-text / text alternatives for images Captions for videos Keyboard navigation Consistent design Color contrast
  40. 40. Action Items to Reduce Risk Audit website & mobile apps Improve products (+ preserve evidence) Assess the remediation (re-check) Post Accessibility Statement, External Accessibility Policy and Plan, Internal HR portals & Vendor Contracts Insurance (Cyber/ Website)
  41. 41. Action Items to Reduce Risk Monitor, its not just one-time event Get Technical Training Appoint an Accessibility Coordinator Offer Alternate methods (telephone support) Don’t ignore demand letter (start working on improving your site)
  42. 42. What Should I Do to Reduce Risk?
  43. 43. Audit Process Remediate Maintain Remediation Assess Your Environment Accessibility & Compliance scope | advise train | mentor re-check | monitor CONFIDENTIAL
  44. 44. New Design & Development Process Enabl e Launch Accessible Processes Preview Your Designs Accessible & Compliant support | advise train | a11y QA support | monitor CONFIDENTIAL
  45. 45. Process for Platforms Enabl e Leverag eAccessible Processes for end clients on dashboards Establish Base Themes or core code component compliance first Accessible & Compliant platforms for increased accessibility CONFIDENTIAL
  46. 46. Accessibility Required by Contract General: “Vendor will comply with all applicable laws and regulations in providing Services and Deliverables.” Specific: Services and Deliverables will comply with ADA, 504, WCAG2.0. Pass-through: Vendor agrees to comply with all laws and requirements applicable to Customer.
  47. 47. KEY TAKE AWAY: Making your products accessible should be viewed as a process, not a one-time project • Don’t let the time and money go to waste • Reduce risk of costly lawsuit litigation Accessibility is Ongoing
  48. 48. Thank You ! Michele Landis 612-440-3601