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Web Accessibility Case Law Examples ADA Trainer Network Module 7i

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1 Web Accessibility Case Law Examples ADA Trainer Network Module 7i
This module reviews the guidance received from the DOJ, courts and other federal level organizations on web accessibility. It is important to note that the planned release of new regulation for web accessibility for Title II and Title III will completely alter this legal picture, much as the ADA AA modified the enforcement picture for the ADA in general. These new regulations are scheduled for release in 2013, although it may be 2014 before they are published. Trainer’s Name Trainer’s Title Phone Number /Web Address

2 Disclaimer Information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA. The Mid-Atlantic ADA Center is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the ADA. The contents of this document were developed under a grant from the Department of Education, NIDRR grant number H133 A However, those contents do not necessarily represent the policy of the Department of Education, and you should not assume endorsement by the Federal Government.

3 Web Accessibility: Case Law
Title I: EEOC informal discussion letter Title II: California Community College MARTA Title III: Target.com Southwest Airlines Netflix Title III Settlement Agreements: Charles Schwab & Co. Hilton Hotels This is a summary slide that reviews the cases that will be discussed in this module. Do not linger on the information in this slide, it is only meant to provide an overview to participants.

4 Title I – Informal Guidance Document
No mandate for web accessibility for Title I institutions Letter to EEOC about lack of access to web-based job openings EEOC said employers were free to use a variety of methods to expand the pool of applicants for vacant positions Title I does not mandate web site accessibility. The only guidance available is an information discussion letter from the EEOC in response to an inquiry from a member of the public. The inquiry raised legal concerns about lack of access to job postings as a result of inaccessible web sites. While the EEOC appreciated the argument, they stated that employers were free to use a variety of methods to expand the pool of applicants for vacant positions. The only guidance provided by the EEOC regarding accessibility of job postings is this: “Information about job openings should be accessible to people with different disabilities. An employer is not obligated to provide written information in various formats in advance, but should make it available in an accessible format on request.” Web Accessibility was referred to as an emerging issue in 2003 – but no additional guidance has been provided to date. While the DOJ is planning to release regulations around web accessibility for Title II and Title III in 2013, the EEOC has not announced similar plans for Title I. The ADA was written before web accessibility became such a critical issue. Many organizations, such as the American Bar Association, argue that the spirit of Title I of the ADA would dictate web accessibility. This has yet to be supported in the courts.

5 How do we promote web accessibility in Title I entities?
Federal government as a model employer for people with disabilities Section 508 and federal agencies OFCCP monitors web-site accessibility of federal contractors Any employer must provide an accessible process for applicants While the ADA does not specifically mandate web accessibility for Title I entities, there is some regulations around web accessibility for some employer groups. Federal employers are currently under an executive order (#13548 – please see the following for more information: edocket.access.gpo.gov/2010/pdf/ pdf) to become a model employer for PWD and are being urged under another executive order (# – Please see the following for more information: frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2000_register&docid=fr28jy pdf) to hire 100,000 PWD in a 5-year period The Office of Federal Contract Compliance Programs (OFCCP) includes a review of online applications and company websites in its compliance reviews of federal contractors. For more information see: According to the OFCCP compliance manual, “Where the personnel process is found to be inaccessible to individuals with disabilities or special disabled veterans, corrective action may include having a site survey done to determine what steps can be taken to improve accessibility.” (For more information see: 3I Compliance letter e) Many companies are moving towards online only application procedures (recruiting, posting job openings, and submitting resumes). Employers must offer an accessible alternative for PWD and the easiest way to do this is to ensure that the online system is accessible. Not only does it ensure a level playing field for all applicants but it also protects against human error. If one HR representative or manager says,” you have to apply online” and “we don’t help with that”, and the applicant could file a complaint.

6 Title II and Web Accessibility
Federal agencies must comply with Section 508 Many States have adopted state-level web accessibility policies that mirror Section 508 Title II web access issues are primarily about effective communication Alternatives can be offered, but are unlikely to provide equal access Federal employers must complete Biannual review for Section 508 compliance with report to attorney general Puerto Rico has a territorial policy, VI does not. An agency with an inaccessible website may also meet its legal obligations by providing an alternative accessible way for citizens to use the programs or services, such as a staffed telephone information line. These alternatives, however, are unlikely to provide an equal degree of access in terms of hours of operation and the range of options and programs available. For example, job announcements and application forms, if posted on an accessible website, would be available to people with disabilities 24 hours a day, 7 days a week. Here is a good resource:

7 Title II – Effective Communication
California Community College OCR compliance review for Title II and Section 504 access issues Recommended investing in accessible distance learning and internet technology MARTA Lack of information available on bus routes equivalent to the non-disabled population Critical issue was time difference for 1 access method over another Web accessibility arguments in Title II cases often center on effective communication. Consider the following cases: California Community College: OCR conducted a compliance review on the California Community College System to determine if they were meeting their obligations under Title II of the ADA and Section 504 of the Rehabilitation Act to provide students with visual impairment access to print and computer-based information. The Summary Report (available at states that the CCC system could save considerable money by investing in accessible distance education and internet technology. They also said that current methods to provide accessibility weren’t working and that changes had to be made to ensure accessibility. MARTA: Vincent Martin, et al., filed a lawsuit against Atlanta’s mass transit system (MARTA) for alleged violations of Title II of the ADA. One portion of their lawsuit focused on the lack of availability of information about bus routes. The MARTA web site offers current bus schedule information, but was inaccessible to blind users. Their only alternative was to call or to request a printed Braille version. Neither of these are equivalent alternatives as it takes over a week to receive the Braille versions and the calls only permit inquiries on a specific bus route. Vincent Martin, et al. claimed they could not receive sufficient bus schedule information in a timely manner. Title II of the ADA requires entities that provide a public service to “take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communication with others. In this case, the MARTA web site serves as an auxiliary aid for “effective” communication, and thus Title II of the ADA seems to apply to it.

8 Title III – Conflicting Findings
Target Web site was not the equivalent of the brick and mortar store and therefore it had to be accessible. Southwest Airlines ADA applies only to physical spaces and not to the internet Netflix Title III entity for the purposes of the ADA because the “watch instantly” service takes an existing product and modifies it for their customers it is a service under Title III and not a good. There has been a great deal of controversy around whether Title III of the ADA applies to only brick and mortar stores or to e-commerce sites as well. We look to case law for clarification. Unfortunately, those findings have been mixed. The Target Case: US District Court in California (United States District Court, Northern District of California, Case No MHP, Target vs. NFB ( NFB brought suit under the ADA Because of an inaccessible web site. Target sought to have the case dismissed because the ADA did not apply to web sites. The judge ruled the case could move forward because there were goods offered at Target.com that were not offered at the brick and mortar stores. The case ended in a settlement agreement that stated the Target.com site would be fully accessible by February 28, 2009, however no precedent was set. Target has since been awarded the Gold level NFB-NVA Certification by NFB. The Southwest Airlines Case: The US District Court for the Southern District of Florida dismissed this case. The judge ruled that the ADA applies only to physical spaces, such as restaurants and movie theaters and not to the internet. Judge Seitz further stated that expanding the ADA To cover virtual spaces would be to create new rights without well defined standards. The upcoming release of Title III web accessibility standards will change this argument. Netflix: Consent degree with the National Association of the Deaf to resolve the MA district court case Alleged Netflix violated Title III of the ADA by failing to provide adequate closed captioning on watch instantly web only video streaming service Resolution by September 30, 2014 Netflix will ensure 100% of its watch instantly content is captioned or subtitled This decision was contrary to a similar case – Cullen v Netflix in CA (June 2012) that video streaming website is not an actual physical space and is therefore not covered under the ADA One important question is how this will apply to similar services such as instant streaming on amazon prime:

9 Title III and Settlement Agreements
Charles Schwab & Co. Agreed to become compliant to WCAG 2.0 Level A and AA success criteria and provide an alternative to CAPTCHA Hilton Worldwide, Inc. Agreed to make the whole chain compliant with WCAG 2.0 Level A success Criteria Many organizations are under scrutiny for not providing accessible web sites and some find themselves under settlement agreements with the Department of Justice as a result. Below is one example: The investment giant, Charles Schwab & Co., settled a complaint by a user who was blind. The user of the site who brought the suit, Kit Lau, was a day trader who had been using the site successfully for some time, but an update to the site left it inaccessible to him. Charles Schwab & Co. agreed to make their website compliant to WCAG 2.0 Guidelines and provide an alternative to the CAPTCHA (Completely Automated Public Turning Test to Tell Computers and Humans Apart) security measure on its websites by June 30, The settlement agreement went into effect in October 20, As part of the agreement, Schwab also agreed to post an accessibility information page that describes the materials and services available to individuals with disabilities ( The Department of Justice (DOJ) has issues revised ADA Title III regulations regarding places of lodging. These regulations include several significant provisions designed to enable individuals with disabilities to make reservations at places of lodging as effectively as others. In one case, the Hilton Hotel chain found themselves addressing allegations of a failure to provide the ability to reserve accessible rooms through Hilton’s Central Reservation System online or by telephone. In the first settlement agreement of its kind, Hilton Worldwide, Inc. (Hilton Hotels and a number of its franchised hotels) will have to become compliant with the WCAG 2.0 web accessibility guidelines Level A success criteria by August 30, This settlement agreement includes the website and websites for the brands that are constructed on the domain including Conrad Hotels and Resorts, Doubletree, Embassy Suites Hotels, Hampton Inn, Hampton Inn & Suites, Hilton Garden Inn, Hilton Grand Vacations, Homewood Suites by Hilton, the Waldorf Astoria, and Home2 Suites by Hilton.

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