Website Accessibility Under the ADA Reduce Risk and Improve Marketing

Transcription

1 Website Accessibility Under the ADA Reduce Risk and Improve Marketing 1 Merrit M. Jones, Esq. Bryan Cave LLP Washington Bankers Association Marketing Conference March 21, 2017 For educational purposes only. Not intended to be used as legal advice. The presenter does not represent Washington Bankers Association or the presentation attendees, who should seek legal advice from their own counsel All rights reserved

2 Website Accessibility Demand letters allege websites fail to comply with WCAG 2.0 AA Threaten lawsuit Injunctive relief Attorneys fees 2 2

3 Website Accessibility Does Title III of the ADA apply to bank websites? Is your bank s website accessible? What does website accessibility mean? What does it cost? How can it be used as a marketing tool? 3

4 help protect your privacy, PowerPoint has blocked automatic download of this picture. Why Make Websites Accessible? The ADA is a civil rights law There have been over 25,000 ADA lawsuits in U.S. federal courts since 2000 many against banks. Remedies for noncompliance can be severe: Fines DOJ can seek civil penalty of $75,000 for first violation, or $150,000 for subsequent violations. Attorneys fees. Injunctive relief. 4 To

5 help protect your privacy, PowerPoint has blocked automatic download of this picture. Why Make Websites Accessible? 5 To Nearly 20 percent of the U.S. population has a disability. More than 7.3 million people in U.S. have varying degrees of blindness. Over one million Americans are deaf, and 8 million are hard of hearing. Neurological disabilities, including epilepsy, affect nearly one billion people worldwide. Color blindness affects approximately 1 in 12 men and 1 in 200 women around the world.

6 help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility 6 To

7 help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility Title III of the ADA prohibits discrimination on the basis of disability in any place of public accommodation. 42 U.S.C (a). ADA doesn t address websites, and DOJ regulations not expected until at least But ADA requires reasonable modification of policies and procedures and auxiliary aids and services to access the goods and services businesses offer by ensuring effective communication with customers who are disabled. 42 U.S.C (b)(2)(A)(ii-iv). Braille, large font statements Qualified American Sign Language Interpreters free of charge 7 To

8 help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility Does ADA Apply to Websites? Courts disagree: Likely not bank-to-bank websites. Or websites that only provide services in cyberspace. Earll v. ebay, Inc., 2015 WL (9 th Cir. 2015) Young v. Facebook, Inc., 790 F. Supp. 2d 1110, (N.D. Cal. 2011) Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, (N.D. Cal. 2012) Jancik v. Redbox Automated Retail, LLC, 2014 BL , at *8-9 (C.D. Cal. 2014) 8 To

9 help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility Does ADA Apply to Websites? Websites with nexus to physical place must be accessible. National Federation of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006): Target paid plaintiff $6 million, $3.7 million in attorneys fees. National Association of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196 (D. Mass. 2012): ADA required captioning of Netlix s streaming video library. Nat l Federation of the Blind v. Scribd, Inc., 97 F.Supp.3d 565 (D. Vt. 2015), denying motion to dismiss complaint that digital library and mobile application were inaccessible to blind people. In Davis v. BMI/BND, (CIVDS , 2015), a California Superior Court granted summary judgment for plaintiff ruling that the ADA applies to a retailer s website and awarded $4,000 in damages and attorneys fees. 9 To

10 Web Accessibility 10 DOJ s position is that ADA applies to websites. Consent Decrees, Settlement Agreements. DOJ investigation starts as Operator Relay Service matter and morphs into all customerfacing communications issues. Gil v. Winn-Dixie: DOJ intervened to challenge Winn-Dixie s position that Title III doesn t apply to its website.

11 Web Accessibility World Wide Web Consortium has developed guidelines Web Content Access Guidelines, or WCAG 2.0 Three levels: A, AA, AAA Four principles: Perceivable Operable Understandable 11 Robust

12 Web Accessibility Web Content Accessibility Guidelines 2.0 A and AA Success Criteria POUR Guidelines organized under 4 principles: Perceivable information and user interface components must be presentable to users in ways they can perceive text alternatives. Operable - User interface components and navigation must be operable keyboard accessibility - enough time. Understandable Information and operation of user interface must be understandable readable simple but not condescending language prompts. 12 Robust Content must be robust enough that it can be interpreted by a wide variety of assistive technologies.

13 help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility WCAG 2.0 A and AA: Perceivable Text alternatives for non-text content: pictures, icons, graphics and links Close captioning for videos and audio 21 st Century Communications and Video Accessibility Act Color contrast Don t rely on color as only way to convey information (for example, red for errors) Type size resizable Web forms need clear label for each field PDF documents accessible to screen readers Are your Privacy and Agree to Terms perceivable? 13 To

14 help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility WCAG 2.0 A and AA: Operable Users should be able to tab from element to element and know where they are on the page. Ability to pause or stop time-based media or scrolling content. If time-based session times out, users should be able to log in without losing data or place on page. Avoid flashing lights that may cause seizures (more than 3 flashes per second). 14 To

15 Web Accessibility WCAG 2.0 A and AA: Understandable Content as well as how to operate website should be understandable. Clear site map with headings that make sense when tab through using a screen reader. Operate in predictable ways. Elements on multiple pages should appear in same place, operate in same way. Use clear language. Identify website s primary language within code: English, Spanish, French, Chinese, etc. 15 To help protect your privacy, PowerPoint has blocked automatic download of this picture.

16 Web Accessibility WCAG 2.0 A and AA: Robust Accessible using a variety of assistive technologies Continue to be compatible as technology improves Assist users in avoiding and correcting mistakes Provide contact number or help line? 16

17 To help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility WCAG 2.0 AAA: Sign language translations for videos. Audio descriptions for videos. Contrast ratio at least 7:1. No time limits. Don t change elements until users ask. Save user data when reauthenticatnig. Every link s purpose is clear from text. Explain unusual words, abbreviations. Use clear and simple writing. Provide detailed instructions, and help for users who encounter difficulties. 17

18 Here s How Easy It Is To Be An ADA Target To help protect your privacy, PowerPoint has blocked automatic download of this picture. 18

19 help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility: Take Steps Now Questions for Access Consultants Do they use disabled individuals to perform evaluation? Do they provide a report, make fixes, or both? Are the fixes permanent, or do they rely on licensed software with an annual subscription fee? Do they provide accessibility certification? Do they provide a helpline for users who encounter difficulties? How many other banks do they have as clients? Get estimate from at least three consultants. Request their form master services agreement, statement of work. 19 To

20 To help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility: Take Steps Now Accessibility Statement Standards you are using Steps you are taking Certification by third party? Information on auxiliary aids and services: large font and Braille documents, audio recordings of printed publications Contact number for TDD/TTY How to get help if users encounter problems Job seekers with disabilities 20

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26 help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility: Take Steps Now ADA Compliance in Technology Provider Contracts Applicable contracts: Software license and maintenance agreements Web and software development and maintenance agreements License and purchase arrangements for customerfacing technology (e.g., customer kiosk technology) Check all website and customerfacing vendor contracts for: A general compliance with laws warranty or covenant An indemnity for failure to comply with applicable laws or regulations Exclusions from the contractual limitations of liability for failure to comply with applicable laws or regulations, indemnity 26 To

27 help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility: Take Steps Now Better Practices for Vendor Contracts Include: WCAG 2.0 AA compliance as a part of vendor due diligence Compliance covenant or warranty in all contracts Sample ADA compliance covenant: [Vendor] shall ensure that the [Software] and the [Web Site] comply with the Web Content Accessibility Guidelines 2.0 level AA ("WCAG 2.0"), the Americans with Disabilities Act of 1990, 42 U.S.C et seq. ("ADA"), Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d), and its implementing regulations set forth at Title 36, Code of Federal Regulations, Part 1194, and all other state and federal laws, rules, and regulations regarding disabled access and prevention of discrimination against individuals with disabilities. 27 To

28 help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility: Take Steps Now Better Practices for Vendor Contracts Include: 28 To Indemnity for all claims, whether or not result in lawsuit Sample ADA compliance indemnity: [Vendor] shall defend, indemnify and hold harmless [Customer], its affiliates and its and their employees, officers, directors, agents and assigns from and against any and all fees, costs, liabilities, damages and expenses (including attorneys fees) arising out of or resulting from any third party claim or demand that the [Software] or the [Web Site] fails to comply with the Web Content Accessibility Guidelines 2.0 level AA ("WCAG 2.0"), the Americans with Disabilities Act of 1990, 42 U.S.C et seq. ("ADA"), Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d), or its implementing regulations set forth at Title 36, Code of Federal Regulations, Part 1194, or any other state or federal laws, rules, or regulations regarding disabled access and prevention of discrimination against individuals with disabilities.

29 help protect your privacy, PowerPoint has blocked automatic download of this picture. Web Accessibility: Take Steps Now Auxiliary aids and services Qualified American Sign Language interpreters. Video remote interpreting services. Note takers. Real time computer-aided transcription services. Written materials for hearingimpaired individuals. Large font statements. Captioned telephones Braille statements and documents. Telephone headset amplifiers Voice based telecommunications systems 28 C.F.R To

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