Assessing Website Accessibility

Transcription

1 Assessing Website Accessibility 4A s Legal Affairs Committee Karen Jeffers and Russell Anderson 11/28/17

2 Why Now? DOJ requiring governmental and public accommodation websites to meet accessibility standards even in the absence of formal regulation Demand letters and lawsuits alleging violation of the ADA based on website accessibility. Source: Seyfarth Shaw - 2

3 ADA Basics Title I Employment Title II Public Services: State and Local Government Title III Public Accommodations and Services Operated by Private Entities 3

4 Places of Public Accommodation Public accommodation means a private entity whose operations affect commerce and fall within one of 12 categories: Hotels Restaurants Movie theaters, concert halls, stadiums Convention centers, auditoriums and other places of public gathering Stores Service establishments (including lawyers). Transportation Museums and libraries Parks and other places of recreation Schools and universities Day care and senior citizen centers Gyms Full Definition at 28 CFR

5 What is a Service Establishment? Service establishment is included in a longer, more specific list: A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment. Levorsen v. Octapharma Plasma, Inc., 828 F. 3d 1227 (10 th Cir., 2016) Plasma donation center. Plaintiff suffered from schizophrenia. Center refused to allow the plaintiff to donate blood. Is the center a service establishment? 5

6 So I thought the ADA only applied to physical locations Early case law tended to find that websites were not intended to be covered by the ADA. More recently, numerous cases have found that the ADA does in fact apply. For example: National Federal of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt., 2015) Andrews v. Blick Art Materials, LLC, 2017 WL (E.D.N.Y. 2017) Gil v. Winn-Dixie Stores, Inc., No. 1:16-cv (S.D. Fla., slip op. June 12, 2017) 6

7 Lawsuit Stats Source: Seyfarth Shaw - 7

8 DOJ and Other Regulations DOJ has continually put off issuing regulations to define website accessibility. Likely that if (and when) DOJ does, the standard will be the current WCAG at that time. DOJ has entered into numerous settlement agreements and consent decrees about the accessibility of websites and mobile apps. H&R Block DOJ intervened in lawsuit originally filed by National Federation of the Blind Access Board - Regulation that federal websites must comply with Website Content Accessibility Guidelines (WCAG) 2.0 AA. 8

9 Ramifications of Non-Compliance This is not the TCPA But monetary damages and civil penalties may be awarded if AG brings action Attorneys fees continue to drive suits State statutes 9

10 WCAG WCAG stands for Web Content Accessibility Guidelines. Created by World Wide Web Consortium Three levels of compliance A, AA and AAA Standards change over time. WCAG 2.1 is in development for a potential 2018 release. 10

11 Perceivable Alternative Text 11

12 Perceivable - Provide captions and other alternatives for multimedia. 12

13 Perceivable - Content Structure 13

14 Perceivable - Contrast 14

15 Operable Keyboard Accessible 15

16 Operable Time Limits Not everyone can work within a time limit. When security or other circumstances require a time limit, that can be ok, but should try to accommodate the user. Media players should allow users to readily control playback of the content. 16

17 Understandable and Robust Program in language cues. Provide other aids to understanding (such as illustrations), especially for complicated materials. User Experience (UX) Testing Can users with a disability really accomplish the desired tasks? Robust - Can the website (and its components) work on all different platforms different browsers, mobile, etc 17

18 Testing Let s test! 18

19 Website Accessibility Policies Not having an Accessibility Policy will be used against you 19

20 Issues with Contracting Compliance with Law/Industry Standards Representations Indemnification Assigning Responsibility 20

21 Contact Information Karen Jeffers Pullman & Comley, LLC 850 Main Street Bridgeport, CT Tel: Russell Anderson Pullman & Comley, LLC 850 Main Street Bridgeport, CT Tel:

22 These slides are intended for educational and informational purposes only. Readers are advised to seek appropriate professional consultation before acting on any matters in this update. These slides may be considered attorney advertising. Prior results do not guarantee a similar outcome. BRIDGEPORT HARTFORD STAMFORD WATERBURY WHITE PLAINS