WHAT BUSINESSES SHOULD KNOW ABOUT WEBSITE ACCESSIBILITY LAWSUITS UNDER THE AMERICANS WITH DISABILITIES ACT

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1 WHAT BUSINESSES SHOULD KNOW ABOUT WEBSITE ACCESSIBILITY LAWSUITS UNDER THE AMERICANS WITH DISABILITIES ACT INTRODUCTION Serial plaintiffs are suing businesses in alarming numbers alleging that websites and/or mobile applications are not accessible to persons with disabilities. This checklist reviews compliance obligations and the potential legal risks. The prevailing view is that Title III of the Americans with Disabilities Act ( ADA ) applies to websites and requires them to be accessible to the public on desktop computers as well as laptops, tablets, smart phones, and other devices. However, some courts have ruled that websites must have a nexus to a physical place in order to be covered by the ADA. The obligation may be construed broadly, as some courts have ruled that businesses even have a legal obligation to require third party vendors to make their applications accessible if they operate within the businesses websites. ARE THERE REGULATIONS FOR WEBSITE ACCESSIBILITY? There are no federal, state, or city regulations specifying to what extent websites must be accessible or any legal standard to be applied in determining if a website is accessible. In fact, the U.S. Department of Justice ( DOJ ) has delayed the publication of such regulations. There is not a single reference to websites or the internet in the text of the ADA (remember, it was passed in 1990), although the DOJ has argued that websites are required to be accessible because public accommodations have an obligation to provide auxiliary aids and services to ensure effective communication. Regulations are not expected any time soon, since the DOJ has placed website rulemaking on its 2017 Inactive Actions list. Even if a business successfully defends a claim, the expense of litigation may exceed the cost of compliance. Businesses also should evaluate the reputational risk. WHAT IS AN ACCESSIBLE WEBSITE? To be accessible, websites should be usable by persons with various sight, hearing, and mobility disabilities. Persons with these disabilities must have access to all content and functionalities of the website through the use of screen readers and other assistive technologies. However, many courts and the DOJ have viewed the privately developed Web Content Accessibility Guidelines ( WCAG ) 2.0, Level AA, as the de facto standard for ADA compliance. Accordingly, businesses should construct or redesign their websites in compliance with this standard. Until businesses can ensure that their websites are fully accessible and comply with the WCAG 2.0 (AA) standard, they should consider providing access to the goods and services on their websites in an alternative, equivalent manner (e.g., 24/7 toll-free phone access with live agents). A variety of disabilities should be considered. For example: o Persons with low vision need to be able to resize text; o Persons with hearing impairments need captioning to access the audio for videos shown on websites; and o Persons with limited dexterity need to be able to navigate a website using a keyboard instead of a mouse. WHAT IS THE STATUS OF WEBSITE ACCESSIBILITY LAWSUITS? As of the date of publication, there are few published court decisions regarding website accessibility claims, particularly in certain jurisdictions. However, a number of courts that have considered these issues have been unsympathetic to businesses, and plaintiffs are taking advantage of the reality that many businesses are unaware of their obligations under the ADA and do not have fully accessible websites. 1

2 Website accessibility lawsuits are proving to be challenging to defend and expensive to resolve. While most cases settle, if a court finds that a website is inaccessible, it can order the business to make its website accessible and to pay the plaintiff s attorneys fees, costs, and expenses. Additionally, in certain jurisdictions, the court can order the business to pay the plaintiff monetary damages and/or civil penalties under state and/or local law. WHAT SHOULD BUSINESSES DO? Businesses should consult with legal counsel and their web designers immediately prior to the filing of a lawsuit to mitigate their risk and to ensure that their websites and mobile applications are accessible. Engaging a web accessibility consultant to review their online platforms and, ultimately, certify compliance also is strongly recommended. WHAT THE WEB CONTENT ACCESSIBILITY GUIDELINES 2.0 REQUIRE The WCAG 2.0 guidelines are a privately developed international standard for website accessibility. There are three levels of conformance with the WCAG 2.0 guidelines (A, AA, and AAA). In the absence of any federal regulations, many courts as well as the DOJ have viewed compliance with the WCAG 2.0 (Level AA) guidelines as compliance with the ADA. The WCAG 2.0 guidelines are based on four core principles of web accessibility. Websites must be perceivable, operable, understandable, and robust. That means Information and user interface components must be presentable to users in ways they can perceive. User interface components and navigation must be operable. Information and the operation of user interface must be understandable. 1. PERCEIVABLE Ensure that information is perceivable by providing text alternatives for non-text content so it may be converted into other forms (e.g., large print, braille, speech, symbols, or simpler language). Provide alternatives for time-based media, including, but not limited to, captions for pre-recorded and live audio content as well as audio descriptions for pre-recorded video content. Create content that can be presented in different ways without losing information or structure by ensuring that content is read in correct sequence by assistive technologies and that instructions for understanding and operating content do not rely on sensory characteristics, such as shape, size, visual location, orientation, or sound. Make it easier for users to see and hear content by ensuring that color is not used as the only visual means of conveying information (e.g., highlighting required fields in red), providing a mechanism for users to pause or stop audio or control audio volume, maintaining a certain contrast ratio of text and images of text, permitting text to be resized without assistive technology and without loss of content or functionality, and using text to convey information instead of images of text. 2. OPERABLE Ensure that all functionality is operable through a keyboard without requiring specific timings for individual keystrokes and that the content does not trap the keyboard user within any particular section of the webpage. Users must be able to move to and from all components of a webpage using a keyboard. Content must be sufficiently robust to be interpreted reliably by user agents, including assistive technologies. A summary of the requirements for achieving Level AA conformance with the WCAG 2.0 follows. It is not exhaustive. For a more comprehensive understanding (including certain exceptions) and specific guidance for implementation, businesses should review the WCAG 2.0 guidelines, including a customizable quick reference to the guidelines, available at and consult with their counsel, web developers, and accessibility consultants. Provide users with sufficient time to read and use content by making time limits adjustable so that they can complete tasks within their own individual response times. Users should be able to pause, stop, or hide moving, blinking, scrolling, or auto-updating information. Design content in a way that does not cause seizures by ensuring that webpages do not contain content that flashes more than three times in any one second period or that flashes below the general flash and red flash thresholds. 2

3 Help users navigate websites, find content, and track their locations by offering mechanisms for users to bypass repeated content, providing titles for webpages, headings and labels that describe the topic or purpose, focusing components of webpages in an order that preserves their meaning and operability, allowing the purpose of links to be determined from their text, providing multiple ways for locating a webpage within a set of webpages, and providing a visible indicator to inform the user of the element that has the keyboard focus. 3. UNDERSTANDABLE Make text content readable and understandable by ensuring that the default human language of each webpage, including each passage or phrase in the content, can be programmatically determined. Make webpages appear and operate in predictable ways by ensuring that the context is not changed when a component triggers an event or a user interface component setting is changed (unless the user is advised of the change in advance), repeating navigational mechanisms on multiple webpages in the same order, and identifying components with the same functionality consistently throughout the webpages. Help users avoid and correct mistakes by identifying and describing input errors in text, providing labels or instructions when content requires user input, providing suggestions for correcting input errors, and providing mechanisms to prevent errors on webpages involving legal commitments and financial transactions, such as making submissions reversible, checking data for input errors and allowing the user to correct the errors, or permitting the user to review, confirm and correct information before finalizing submissions. 4. ROBUST Ensure that content is robust and can be interpreted reliably by assistive technologies and without crashing. Webpages must have complete start and end tags, be nested according to their specifications, not contain duplicate attributes, and have unique identifications. Additionally, the name, role, and value of user interface components must be programmatically determinable. CHECKLIST FOR IDENTIFYING WEBSITE ACCESSIBILITY ISSUES Businesses should engage a website accessibility consultant or a proficient web developer to review the accessibility of their website. In advance of any formal review, they can conduct a preliminary assessment by using free on-line tools to scan their website for errors, or by reviewing some of the common accessibility issues through the checklists below. However, these assessments should not be a substitute for the comprehensive review of an expert, as the results from the online scan or survey questions may not be accurate or address all of the potential issues. The following list of questions initially was prepared by the DOJ s Civil Rights Division for state and local governments (and modified by us), but is equally significant and useful for private businesses. Please be advised that it neither is intended to identify all accessibility issues nor should it be relied upon to determine compliance with the ADA, the WCAG 2.0 guidelines, or any other website accessibility standard. However, it is a helpful starting point for thinking about these issues and uncovering possible problems with your website. Assessing Current Webpages and Content on Your Website 1. Does the top of each page with navigation links have a bypass mechanism such as skip navigation link? (This feature directs screen readers to bypass the row of navigation links and start at the webpage content, thus enabling people who use screen readers to avoid having to listen to all the links each time they move to a new page.) 2. Can all links be understood when taken out of context (e.g., links are not worded as click here, and image links are not provided without text alternatives)? Yes No 3. Do all of the photographs, maps, graphics and other images on the website currently provide text alternatives via the alt attribute, a hidden or visible long description, or some other method? 3

4 4. Are all of the documents posted on your website available in HTML or another accessible text-based format (for example, rich text format (RTF) or word processing format), even if you are also providing them in another format, such as Portable Document Format (PDF)? 5. If your website has online forms, are they structured so assistive technology can identify, describe and operate the controls and inputs so people with disabilities can complete, review and submit the forms? N/A 13. Is the website accessibility policy posted on your website in a place where it can be easily located? N/A 14. Have procedures been developed to ensure that content is not added to your website until it has been made accessible? 15. Does the website manager check the code and structure of all new webpages to confirm accessibility before the pages are posted? 6. If your website has online forms, does the default setting in drop-down lists describe the information being requested instead of displaying a response option (e.g., your age instead of )? N/A 16. When PDFs are added to your website, are those PDFs accessible, or are text-based versions of the documents (e.g., HTML, RTF, or word processing format) added at the same time as the PDF versions? N/A 7. If a webpage has data charts or tables, are they structured so that all data cells are explicitly associated with column and row identifiers? N/A 17. Have in-house staff and contractors received information about the website accessibility policy and procedures to ensure website accessibility? N/A 8. Do all video files on your website have audio descriptions (if necessary) of what is being displayed to convey this information to people who are blind or have low vision? N/A 9. Do all video files on your website have synchronized captions to provide access to people who are deaf or hard of hearing? N/A 18. Have in-house and contractor staff received appropriate training on how to ensure the accessibility of your website? 19. If your website contains inaccessible content, is a specific written plan including timeframes in place now to make all of your existing web content accessible? N/A - website is completely accessible 10. Do all audio files on your website have synchronized captions to provide access to people who are deaf or hard of hearing? N/A 11. Have all webpages been designed so they can be viewed using visitors web browser and operating system settings for color and font? 20. Have you posted on your website a plan to improve website accessibility and invited suggestions for improvements? 21. Does your website home page include easily locatable information, including a telephone number and address, for use in reporting website accessibility problems and requesting accessible services and information? Website Accessibility Policy and Procedures 12. Do you have a written policy on website accessibility? Yes No 22. Do you have procedures in place to assure a quick response to website visitors with disabilities who are having difficulty accessing information or services available via the website? 4

5 23. Have you asked disability groups representing people with a wide variety of disabilities to provide feedback on the accessibility of your website? (Note: Feedback from people who use a variety of assistive technologies is helpful in ensuring website accessibility.) D. If an image is also used as a link, make sure the alt attribute describes the graphic (if necessary) and identifies the link destination E. Decorative graphics with no other function have empty alt attributes (alt= ) 24. Have you tested your website using one of the products available on the Internet to test website accessibility? (Note: Products available for testing website accessibility include no-cost and low-cost options. These products may not identify all accessibility issues and may flag issues that are not accessibility problems. However, they are, nonetheless, a helpful tool in improving website accessibility.) 25. Are alternative ways of accessing web-based information, programs, activities, and services available for people with disabilities who cannot use computers? F. Add captions to videos G. Add audio descriptions if necessary H. Create text transcript I. Create a link to videos as an alternative to embedding videos into web pages J. Add a link to the media player download K. Add an additional link to the text transcript L. The page should provide alternative links to the Image Map CHECKLIST OF ACTION ITEMS FOR IMPROVING THE ACCESSIBILITY OF A WEBSITE In addition to the considering the above questions when evaluating the accessibility of a website, the following checklist, initially prepared by the U.S. Department of Health and Human Services ( HHS ) for federal agencies (and modified by us), provides further guidance on ways to make websites more accessible for persons with disabilities. This practical advice, as well as another checklist available at section-508/making-files-accessible/checklist/html/index.html, should be considered when creating or redesigning a website; however, please note that the HHS checklists are not focused solely on the WCAG 2.0 requirements. Satisfying all of these items does not necessarily mean that a website complies with the ADA, but it will improve the website s accessibility and decrease the risk of litigation. Again, an expert should be engaged to conduct a comprehensive review of your website. A. Every image, video file, audio file, plug-in, etc. has a text alternative B. Complex graphics are accompanied by detailed text descriptions C. The text alternatives identify or describe the purpose of the objects M. The <area> tags must contain an alt attribute N. Data tables have the column and row headers appropriately identified (for example, using the <th> tag) O. Tables used strictly for layout purposes do NOT have header rows or columns P. Complex data tables contain markup to associate data cells with header cells (e.g., using the id, headers, scope and/or axis HTML attributes) Q. Make sure the page does not contain repeatedly flashing images R. Check to make sure the page does not contain a strobe effect S. A link is provided to an accessible page where the plug-in can be downloaded T. All Java applets, scripts and plug-ins (including Acrobat PDF files and PowerPoint files, etc.) and the content within them are accessible to assistive technologies, or else an alternative means of accessing equivalent content is provided 5

6 U. Form controls are marked up so they can be identified and operated by assistive technology X. Make sure that form fields are presented in a logical reading order V. Ensure that all form fields are labeled in an accessible manner W. Ensure that special instructions for forms are available to assistive technology Y. Include a bypass mechanism, such as a skip link, at the top of each page For more information about website accessibility lawsuits and compliance, please contact the following individuals: Carolyn D. Richmond crichmond@foxrothschild.com Ernest E. Badway ebadway@foxrothschild.com Jason B. Jendrewski jjendrewski@foxrothschild.com 6