Defending Digital Accessibility Lawsuits Kristina 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 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 Federal Government Contractors & Subcontractors –Section 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 – 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. Launey Partner Seyfarth Shaw LLP (916) Timothy Stephen Springer Chief Executive Officer SSB BART Group (o)

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 District of Massachusetts enters into consent decree with H&R Block ( –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 WhoPlaintiff’s CounselYear H&R BlockDoJ & NFB2014 PeapodDoJ2014 SafewayDardarian & Feingold2013 WellpointDardarian & Feingold2014 WDPROFeldman2012