1. ADA and the Internet Legal Update Kristina Launey Seyfarth Shaw LLP Tim Springer SSB BART Group info.ssbbartgroup.com/csun2016

2. Agenda Legal Updates Get Proactive Q&A

3. Legal Updates

4. 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 Demand Letters

5. ADA Title III – Statutory Framework 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

6. ADA Title III Relevant Judicial Interpretations Websites of public accommodations that have a physical place of business are covered by Title III of the ADA. Disagreement among courts about whether businesses with no physical location are covered by Title III of the ADA: –First Circuit: No need for physical place of business. –Ninth Circuit: Nexus to physical place of business required. –District of Vermont: Web-only business can be a public accommodation No court decision on whether WCAG 2.0 AA is the appropriate standard for website accessibility because the cases typically settle early. H&R Block and other consent decrees/settlement agreements adopt WCAG 2.0 AA. No court decision on ADA coverage of mobile applications.

7. ADA Title III (cont.) 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 –DOJ 2015 Fall Regulatory Agenda: “The Department expects to publish the Title III web site accessibility NPRM during fiscal year 2018.” DOJ has moved forward with enforcement based on WCAG 2.0 Level AA as the technical standard for accessibility

8. 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

9. Private Litigation Advocacy groups continue to pursue litigation to accomplish access ADA focused plaintiffs attorneys now actively pursuing web-related claims Dramatic rise in the number of ADA demand letters & lawsuits seen in the last year By a handful of firms and plaintiffs

10. Private Litigation Trends

11. Private Litigation Trends (cont.)

12. 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”

13. Title II Activities Enforcement Project Civic Access at DOJ driving significant enforcement activities ADA settlements with State and Local governments routinely including digital accessibility requirements Regulatory RIN: 1190-AA65 - Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Governments (Title II) DOJ 2015 Fall Regulatory Agenda –“The Department expects to publish the title II NPRM early in fiscal year 2016.” Regulations under review at OMB since July 9, 2014Regulations under review at OMB Expectation is that DOJ is still working on economic analysis but principally completed at this point January 2016 came and went with no Title II regs issued…

14. 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 Enforcement activities focused on accessibility of online job systems –We saw a handful of lawsuits filed in CA last year alleging inaccessible online applications and companies’ refusal to reasonably accommodate the plaintiff

15. Get Proactive (Or Lessons Learned)

16. Support and Documentation CSR Training Training for customer service representatives to properly handle and escalate issues related to accessibility Telephone and E-mail Support Provide clear escalation path for users with disabilities

17. Policies and Timeframes All required WCAG 2.0 AA conformance General web sites –Real world time frame: about five years for compliance –Settlement time frames: Ten months to two years –Bottom line: Get moving on this sooner versus later –If you can, carve out certain challenging WCAG aspects Mobile assets (sites, apps) –Real world time frame: six to twelve months –Settlement time frames: one to two years –Often faster than general web site implementation timeframes

18. Policies and Timeframes (cont.) Plug-in content / Third party content –Time frames: vary –Default is natively accessible content v. alternatives –Consider this as your are purchasing systems now Define a calendar that makes sense given your development environment and business

19. Working with Third Parties It’s Tricky Third Party Content on your website: –Software licensed from third parties by retailer to perform functions Google Maps, Recipes feature, circulars, Instagram feeds –Advertising by third parties –Payment mechanism Links to third party websites Many businesses use a vendor to create their websites; –Quick to claim ability to produce WCAG compliant sites –Domain knowledge and controls lacking to actually produce WCAG compliant sites

20. Governance and Structure Internal Accessibility Policy –Create –Distribute –Implement Web Accessibility Coordinator(s) or Team –Defined knowledge requirements –Defined reporting requirements –Performance reviews required Technical Expert –To support and report on implementation Oversight Steering Committee –To monitor and own implementation

21. Communications and Testing 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 Testing and Validation Automatic Testing –Select and meaningfully deploy an automated testing tool Accessibility Quality Assurance Plan –Require testing protocols to be integrated into QA process –Include user testing in a meaningful fashion

22. Procurement, Training 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

23. Key Takeaways

24. Proactive Measures Contact your legal counsel to discuss your risks Secure third party technical expertise to help guide you through the process Look at your support and documentation process to make sure you hear issues that come up 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!

25. Complaint and Demand Letter 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

26. Questions?

27. Presenters Kristina M. Launey, Partner Seyfarth Shaw LLP 400 Capitol Mall, Suite 2350 Sacramento, CA 958174-4428 (916) 448-0159 klauney@seyfarth.com Timothy Stephen Springer Chief Executive Officer SSB BART Group 415.624.2705 (o) tim.springer@ssbbartgroup.com http://info.ssbbartgroup.com/csun2016

28. Appendix

29. Current Legal Requirements – Section 503 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.”

30. Current Legal Requirements – Section 504 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.”

31. Current Legal Requirements - ACAA 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

32. Current Legal Requirements - CVAA 21 st Century Communications & Video Accessibility Act 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

33. 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 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

34. Representative Settlements WhoPlaintiff’s CounselYear H&R BlockDoJ & NFB2014 PeapodDoJ2014 SafewayDardarian & Feingold2013 WellpointDardarian & Feingold2014 WDPROFeldman2012

35. Complaints and Litigation

36. 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

37. 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

38. Addressing Complaints Considerations in developing 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?