1.
Mitigating Risk of
Accessibility
Lawsuits
Michele Landis
Co-Founder
Accessible360
PP
T

2.
What Is Digital
Accessibility?

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.
People With Disabilities
* CDC https://www.cdc.gov/
* 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.
Visual
Types of Disabilities
Cognitive
Physical
Auditory

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.
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.
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.
W3C
The World Wide Web Consortium is
an international community that
develops open standards to ensure
the long term growth of the Web.
www.w3.org
WCAG
Web Content Accessibility Guidelines
https://www.w3.org/WAI/WCAG20/quickref/

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.
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.
The Law

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.
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.
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.
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.
• 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.
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.
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.
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.
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.
National Federation of the Blind v. Target, 452
F.Supp.2d 946 (N.D. Cal., 2006).
Complaint: target.com website is inaccessible to the blind and
therefore violates the ADA and state law.
On Target’s motion to dismiss:
Claims that target.com has a nexus to goods and services offered
in store survive
Court grants dismissal of claims to the extent target.com does not
impact enjoyment of goods and services offered in store
Case ultimately settled. Target agrees to payment and site
improvements.

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.
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.
Robles v. Dominos Pizza, Case No. CV 16-
06599 SJO (March 20, 2017, Cent. Dist.
Cal.).

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.
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.
Things to Consider
VPAT

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.
Becoming Digitally
Accessible

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.
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.
Updated – More direct messaging from US Gov’t than in the past.
CONFIDENTIAL
Scanning Software – U.S. Government

34.
Ask Yourself

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.
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.
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.
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.
WCAG Highlights
Provide alt-text / text alternatives for images
Captions for videos
Keyboard navigation
Consistent design
Color contrast
https://www.w3.org/TR/WCAG20/

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.
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.
What Should I Do to Reduce Risk?

43.
Audit Process
Remediate Maintain
Remediation
Assess
Your Environment Accessibility & Compliance
scope | advise train | mentor re-check | monitor
CONFIDENTIAL

44.
New Design & Development Process
Enabl
e
Launch
Accessible Processes
Preview
Your Designs Accessible & Compliant
support | advise train | a11y QA support | monitor
CONFIDENTIAL

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.
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.
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.
Thank You !
Michele Landis
michele@accessible360.com
612-440-3601