Seyfarth Synopsis: NYC recently passed a law requiring that its government agency websites meet accessibility standards.  Other state and local governments may follow NYC’s lead and enact accessibility standards for government agencies, contractors and even public accommodations in the absence of regulations from DOJ.

On March 14, New York City became the first major municipality in the United States to adopt legislation mandating accessibility standards for all of its government agency websites.  Serving a population of over 8 million, the New York City government includes more than 120 agencies staffed by approximately 325,000 employees.  This legislation will have an impact on City agencies, and access for persons with disabilities to those institutions.  It may also have an impact on future website regulations impacting businesses across the country.

Recent NYC Legislation

The website legislation (Intro. 683-A) was among three disability access bills that Mayor Bill De Blasio signed into law on the same day.  In addition to mandating website protocols, the legislation requires that each City agency designate a “disability service facilitator,” and publicize, among other things, the availability of wheelchair access, communication access real-time translation, sign language interpretation, assistive listening systems (e.g. loop technology), and any other accommodations to be made available for all public events.  This sweeping legislative mandate also expressly requires that City government websites display New York State’s controversial “Accessible Icon” (rather than the International Symbol of Access), to designate venues for government meetings or other events that are accessible to wheelchair users.

NYC Must Adopt an Accessible Website Protocol within 6 Months 

The new City law underscores that the Web Content Accessibility Guidelines 2.0 Level AA (“WCAG 2.0 AA”) is increasingly becoming the de facto standard for website accessibility, despite the continued lack of any regulations from the U.S. Department of Justice (“DOJ”) setting a legally-required standard for state and local governments under Title II of the ADA, or for public accommodations (i.e. private businesses) under Title III.

Under the new law, the City must establish a website protocol within 6 months that incorporates: (1) Section 508 of the Rehabilitation Act (“Section 508”); (2) WCAG 2.0 AA; or (3) any “successor” standards.  The Section 508 standard applies to the federal government websites and  consists of a list of 16 requirements that are less rigorous than WCAG 2.0 AA.  But last year the Access Board proposed a rule that would, among other things, adopt WCAG 2.0 AA as the new website standard under Section 508.  Thus, if the City incorporates Section 508 in its website protocol, its agency websites may be subject to WCAG 2.0 Level AA once the final Section 508 regulations are issued.

There are several exceptions to the new accessibility mandate.  The City may adopt protocols that differ from Section 508, WCAG 2.0 AA, or any successor standard, but if it does, it must first consult with experts in website design, conduct a public hearing, and ensure that any differences will still provide effective communication for persons with disabilities.  In addition, the law does not require the “fundamental alteration” of any service, program, or activity, and shall not impose an “undue financial or administrative burden.”

Potential Impact on Businesses

The adoption of accessibility standards for government websites in the most populous city in the United States is significant.  Other municipalities may follow New York City’s lead and pass their own legislation or regulations for accessible features in government websites.  This may result in differing local standards across jurisdictions, which would undermine DOJ’s efforts to implement a comprehensive, national set of rules for website accessibility under Title II of the ADA.

State and local legislators may decide to extend the WCAG 2.0 AA’s reach to the websites of private businesses doing business with state or local governments, or the public, after they are done dealing with their agency websites.  This could follow the model of Ontario, Canada, where the provincial government enacted regulations requiring businesses with 50 or more employees in Ontario to ensure that their websites meet WCAG 2.0 Level A guidelines (and to meet WCAG 2.0 Level AA by 2021).  Based on the progressive legislative and regulatory agenda of the current mayoral administration, we would not be surprised if New York City passed a future law requiring that government contractors or businesses with a presence in the City provide accessible websites.

The bottom line is that if DOJ continues to delay in issuing proposed rules for website accessibility, states and local governments may step into that void and enact rules of their own for government entities, contractors, and even public accommodations.  This could subject businesses to potentially inconsistent rules across jurisdictions.  It is yet another reason why DOJ guidance on this topic is needed now more than ever.

Edited by Minh Vu and Kristina Launey.

E-learning education or internet library. Conceptual imageBy Minh N. Vu and Paul Kehoe

The Department of Justice (DOJ) and edX today announced an agreement under which edX has voluntarily agreed to make its website, mobile applications, and open source learning platform conform to the Web Content Accessibility Guidelines 2.0, Level AA (WCAG 2.0). EdX contracts with some of the most prestigious universities and institutions in the world to deliver hundreds of free massive online open courses (MOOCs) to the public. While it will continue to be the responsibility of these institutions to provide course content that is accessible to individuals with disabilities, edX’s platform will enable the delivery of such accessible content and will provide these institutions with the tools to create accessible content.

This agreement is another example of the DOJ’s continued focus on ensuring that websites and mobile applications are accessible to individuals with disabilities, in even the absence of regulations specifically addressing these technologies.

Seyfarth represented edX in this matter.

disabled buttonBy Minh N. Vu and Kristina M. Launey

On February 18, 2015, the U.S. Architectural and Transportation Barriers Compliance Board (“Access Board”) issued a proposed rule (“NPRM”) which would, among other things, adopt the WCAG 2.0 Level AA Guidelines (“WCAG 2.0 Level AA”) as the standard for federal government websites.  Section 508 of the Rehabilitation Act requires federal government websites and off-line documents and software to be accessible, but the Section 508 standard for accessible websites has been, since it issued in 2000, a list of 16 requirements that are less rigorous than the WCAG 2.0 Level AA Guidelines.  The issuance of this NPRM underscores that — even while the Justice Department (“DOJ”) has been demanding that public accommodations make their websites conform to WCAG 2.0 Level AA — neither it nor any other federal agency is presently required to meet this standard.  As we have reported, the DOJ has entered into a number of settlements and a consent decree with public accommodations which reference WCAG 2.0 Level AA as the accessibility standard.  DOJ has done so even though it still has not issued a proposed rule that adopts a legal standard for accessible public accommodations websites.  DOJ started this rulemaking process more than four years ago and has stated that it will issue a rule in June of this year. Whether this projected deadline will be pushed back again remains to be seen.

The government has faced scrutiny and even been sued for its own inaccessible websites.  As we previously reported, last year an advocacy group sued the United States General Services Administration, alleging GSA’s own website, SAM.gov, is inaccessible and does not comply with Section 504, leaving certain blind and visually impaired government contractors unable to register or timely renew their government contracts.  The NPRM even notes that some federal agencies have had trouble complying with the less demanding existing Section 508 standards.

In announcing the NPRM, the Access Board noted that adoption of WCAG 2.0 Level AA for federal agency websites would  promote consistency with the Department of Transportation’s recent final rule which adopted the same standard for air carrier and ticket agent websites, and accelerates the spread of web accessibility.

The Access Board will provide a 90 day public comment period and will hold a public hearing on March 5 at the CSUN conference in San Diego, and on March 11, at the Access Board in Washington, D.C. After the public comment period closes, the Access Board will consider the comments and issue a Final Rule.  We will be watching with great interest to see whether federal agencies, including DOJ, will support the adoption WCAG 2.0 Level AA for their own websites and how much time they will give themselves to remediate and conform their websites to this new standard.

By Minh Vu and Kylie Byron

The Department of Justice (DOJ) is continuing to pressure businesses to make their websites accessible even while it is drafting proposed regulations for websites that are supposedly coming out this June.  The latest business targeted by DOJ is the National Museum of Crime and Punishment, which entered into a settlement agreement that was announced on Tuesday, January 13, 2015.

The settlement agreement requires the Museum to redesign its website to conform to the World Wide Web Consortium (W3C)’s Web Content Accessibility Guidelines 2.0 (WCAG), Level AA.  The DOJ has yet to adopt WCAG Level AA (or any other set of guidelines) as the legal standard for website accessibility in any of its regulations, but they are becoming the de facto standard.  As we have previously reported, the DOJ has specified WCAG Level AA as the access standard in all of its recent website accessibility agreements, including those with tax return preparation company H&R Block and online grocer Peapod.

WCAG Level AA requires, among many other things, that websites provide text alternatives for all non-text content; captioning and audio descriptions for all pre-recorded and live video and audio media; and an adaptable layout with a minimum contrast and resizable text.  Further, the website must provide multiple ways to access any individual page, and all pages must be organized and easily navigable by a screen reader. The settlement does not specify whether the Museum’s mobile site, if it exists, would also have to conform to the guidelines.

The settlement agreement gives the Museum only 120 days to make its website conform to WCAG Level AA.  This is a very short timeframe considering that the process  always requires an initial audit, remediation, and retesting to ensure compliance.   On a more positive note, the Museum did not have to pay any civil penalties.

In addition to website remediation, the Museum will also have to provide audio descriptions of tours and exhibits as well as resources in braille and large print for individuals who are blind or who have low vision.  It must also make modifications to the museum itself  to remove physical access barriers.

Edited by Kristina Launey

By Minh N. Vu

They are sprouting up everywhere:  Kiosks that allow customers to buy tickets, rent DVDs, get boarding passes, check-in at a hotel, count change, and even rent cars without ever having to interact with a human being.  These self-service kiosks can be a boon for customers and businesses, but they also create lawsuit exposure for businesses that fail to consider how they will be used by individuals who are blind or have limited mobility.     

Redbox’s recent settlement of a class action lawsuit brought by advocates for the blind highlights this thorny issue and the uncertain legal landscape surrounding self-service equipment designed for customer use.  Several blind individuals and an advocacy group sued Redbox because its DVD rental kiosks could not be independently used by non-sighted individuals.  After two years of litigation and mediation, the parties entered into a class settlement under which Redbox agreed to take the following steps for all Redbox locations in California:

  • incorporate audio guidance technology, a tactile keypad, and other accessibility features into its DVD rental kiosks so that blind customers can use them independently at one kiosk at every location within 18 months and at all California kiosks within 30 months;
  • provide 24-hour telephone assistance at each kiosk;
  • pay $1.2 M in damages to the class of aggrieved persons in California;
  • pay Lighthouse for the Blind $85K to test kiosks;
  • pay $10K to each named plaintiff in damages; and
  • pay $800K in plaintiffs’ attorneys’ fees and costs.

Redbox also agreed to make certain accessibility improvements to its website but notably did not commit to meeting the Web Content Accessibility Guidelines. Continue Reading Accessible Technology: Redbox DVD Rental Kiosk Class Action Settlement Highlights Litigation Risk Presented by Self-Service Equipment

By Minh N. Vu and Kristina M. Launey

Although “drive-by” ADA Title III lawsuits alleging physically inaccessible public accommodations facilities will continue to be a mainstay for the plaintiff’s bar, a new type of lawsuit has recently emerged:  The “surf-by” lawsuit.  In the past month, we have seen an onslaught of case filings and demand letters threatening lawsuits from private plaintiffs alleging that retailers, colleges, and other businesses denied blind individuals access to the businesses’ goods and services by having inaccessible websites or mobile applications.  These plaintiffs generally claim this denial of access violates Title III of the Americans with Disabilities Act (ADA) and California’s Unruh Act.  They are threatening to take action and filing their suits in California because, while the ADA authorizes only injunctive relief and attorneys’ fees, California law imposes up to $4,000 statutory damages per violation of the law.

We had predicted this flurry of lawsuits would come.  Plaintiffs are taking advantage of the uncertainty surrounding this issue created by the Department of Justice’s (DOJ) four-year delay in issuing regulations on this subject, and encouraged by the DOJ’s aggressive enforcement posture on this issue despite its failure to issue regulations adopting a clear standard for accessible websites and mobile applications.  Below is some background on this quickly evolving area of the law and a look at why some businesses are choosing to make their websites and mobile applications accessible now.

What is an “accessible” website?  At this time, there is no law or regulation that sets the technical requirements for an “accessible” website  or mobile application for public accommodations.  Conceptually, an accessible website is one that can be used by people with various sight, hearing, and mobility disabilities.  For example, blind people use screen readers and other assistive technologies to convey to them what is on a webpage.  People with low vision need to be able to resize text and need a certain level of contrast.  People who are deaf need captioning to access the audio in videos shown on websites.  People with limited dexterity need to be able to navigate through a webpage using a keyboard instead of a mouse.

For many years, the so-called Section 508 website accessibility standards applicable to federal government websites was used to define accessibility.  In recent years, however, a new and more robust set of guidelines developed by a private industry group has emerged called the Web Content Accessibility Guidelines (WCAG) (see http://www.w3.org) 2.0.    Last year, the Department of Transportation adopted WCAG 2.0 Level AA as the legal standard that governs the websites of airline carriers under the Air Carrier Access Act.  The DOJ signaled in 2010 that it would likely adopt these guidelines as the standard for public accommodations’ websites, but has still not issued a proposed rule.  As discussed below, the WCAG 2.0 AA is the accessibility standard cited in virtually all settlements involving website accessibility and most recently in DOJ’s consent decree with H&R Block.

Is My Business Required To Have An Accessible Website?  If you want to avoid litigation, yes.  But as a matter of established law, the answer is less clear and may also depend on whether the goods and services available on the website are available in some equivalent alternative manner.  Title III of the ADA requires businesses provide equal access to their goods and services to individuals with disabilities.  This obligation includes providing auxiliary aids and services necessary to effective communicate with individuals with hearing, vision, or cognitive disabilities.  Accessible electronic information technology is considered an auxiliary aid or service.  Based on these regulations, plaintiffs and DOJ are taking the position that making websites accessible is required under Title III of the ADA.

Because litigating these cases is expensive and complicated, most businesses confronted with a demand or lawsuit are likely make a commitment to make their websites comply with the WCAG 2.0 Level AA in some reasonable timeframe.  In 2013 and 2014, a large grocery chain, a weight loss company, an healthcare insurance provider, and a national drug store agreed to make their websites accessible after being approached by advocates for the blind.  Just this year, H&R Block also agreed to make its online tax preparation tool, website, and mobile application comply with the WCAG 2.0 Level AA after being sued by advocates and the DOJ.  In short, despite the lack of website accessibility regulations, more businesses are realizing the importance of making their websites and mobile applications accessible now given the very active enforcement environment.

By Minh N. Vu and Kristina M. Launey

Now that we are all back in work mode, we thought it would be useful to take a quick look at some of the major ADA Title III trends and highlights of 2013 and how they will impact the coming year.   

Digital Accessibility.  We saw a definitive uptick in the number of issues relating to the accessibility of electronic information technology by individuals with disabilities.  Individuals with sight disabilities complained that they could not access the websites of businesses, or that they had trouble using mobile applications that were not fully compatible with the screen readers provided on their mobile devices.  The enforcement agencies in Massachusetts and New York took a keen interest in these issues, which resulted in some businesses agreeing to make their websites and mobile applications accessible to people with disabilities.  Private litigants and advocacy groups were also successful in persuading businesses to voluntarily make their websites accessible. 

The Department of Transportation (DOT) issued its final regulations under the Air Carrier Access Act, requiring airlines to make their websites accessible to people with disabilities by complying with Levels A and AA success criteria of the Web Content Accessibility Guidelines (WCAG) 2.0 within the next few years.  The DOT’s adoption of this standard suggests to us that the Department of Justice (DOJ) will also propose this standard for the websites of public accommodations.  When those proposed regulations will come out is still uncertain, but we predict it will be sometime in 2014. 

Perhaps the most significant news in the area of website accessibility is that DOJ sought to intervene in a private class action brought against a public accommodation for not having an accessible website.  While DOJ has always pressured businesses behind the scenes to make their websites accessible, this is the first enforcement suit of its kind, filed before DOJ has even issued proposed regulations defining what constitutes an accessible website.  The proposed complaint cites to the WCAG 2.0 as a well-accepted industry guideline, further persuading us that the DOJ will in fact adopt this set of guidelines as its legal standard when it finally issues its proposed rule.

Businesses are taking note of the increased private and governmental enforcement activity relating to websites and digital accessibility more generally.  We are seeing businesses be more proactive about this issue and trying to include accessibility in new websites, new web pages, and new contracts with partners that are involved with development of website content.   This is a smart move, as digital accessibility will almost certainly continue to be a hot area in 2014.

Pool Lift Lawsuits Against Hotels.  If you stayed at a hotel with a swimming pool or spa in 2013, you might have noticed that the swimming pool and/or spa had a crane-like device with a seat installed next to it.  These devices are used by people with mobility disabilities to get in and out of a pool or spa.  The DOJ’s 2010 ADA Title III regulations required these lifts to be installed in existing public accommodations facilities by January 31, 2013, unless doing so was not readily achievable.  As we predicted, within several months after the deadline, plaintiffs’ attorneys began filing a flurry of lawsuits in Ohio and Indiana alleging that certain hotels did not have pool lifts, even though some actually did.  We anticipate that more lawsuits of this type will be filed in 2014.

Point of Sale Device Class Actions.  In the second half of 2013, a number of major retailers across the United States were hit with class actions filed in the Western District of Pennsylvania by a blind plaintiff alleging that he and other blind people are being denied access because they cannot use Point of Sale (POS) devices that do not have a tactile keypad for inputting personal identification numbers.  Although the ADA Title III regulations do not specifically address POS devices and their accessibility to the blind, tactile keypads on POS devices have been required in California for several years.  We will report on developments in these pending cases as they arise.

New California Accessibility Standards.  Effective January 1, 2014, the 2013 California Building Code’s (“CBC”) requirements were substantially revised and reorganized to be  more consistent with the federal  2010 ADA Standards for Accessible Design (“ADA 2010 Standards”). However, many substantial differences remain, so businesses in California should take care to comply with both the ADA 2010 Standards and CBC, or if the standards conflict, with the stricter – meaning that which provides greater access.  Businesses should also remain mindful of the other California distinction  – statutory damages of $1000-$4000 per violation – which makes vigilant compliance with the CBC and 2010 ADA Standards that much more important to California businesses.

New Mobile Apps that Rate the Accessibility of Businesses.  In 2013, entrepreneurs with disabilities launched two new mobile applications — AbleRoad and AccessMap — that allow the public to rate and review how accessible business establishments are to people with disabilities.  We reported on these applications and will continue monitoring to see how they develop and whether they will become a litigation research tool for serial plaintiffs and their lawyers. 

Challenges in Renovations Due to Changes in the 2010 Standards.   Effective March 15, 2012, all public accommodations and commercial facilities had to start complying with the 2010 ADA Standards in constructing new facilities and altering existing ones, subject to very limited exceptions.   In 2013, we began seeing some of the challenges the new standards present as hotels renovate spaces that are compliant with the prior set of ADA Standards but must now be brought up to the 2010 ADA Standards because they are being altered.  For example, the 2010 ADA Standards require different bathroom configurations in accessible guestrooms than the 1991 Standards and some hotels are finding it very difficult and/or expensive to make those bathrooms comply with the 2010 Standards.  This issue will continue to be a problem in 2014 and for many years to come.

We thank you for your readership last year and look forward to bringing you more ADA Title III News and Insights in 2014.

By Minh Vu and Michael Fleischer

Although we are not Canadian lawyers, we are reporting on this issue because it is an important development that affects many of our clients and their website compliance efforts in the United States.

As we previously reported, the United States Department of Justice continues to work on its proposed website accessibility regulations for public accommodations. Meanwhile, the province of Ontario, Canada, has moved forward with its own regulations that will require some U.S. companies doing business in Ontario to ramp up their website accessibility efforts immediately. 

In 2011, Ontario issued website accessibility regulations under the Accessibility for Ontarians with Disabilities Act (“AODA”).  Beginning on January 1, 2014, all “large organizations” (defined as those that employ 50 or more employees) must ensure that their “new internet websites” as well as any web-content they posted to their existing websites after January 1, 2012, conform with the WCAG 2.0, Level A.  (By January 1, 2021, the AODA will additionally require large organizations’ internet websites and web content conform with WCAG 2.0, Level AA (the standard largely believed the USDOJ will adopt), other than Captions (Live) and Audio Descriptions (Pre-Recorded).)  WCAG is a set of guidelines developed by an international organization called the World Wide Web Consortium for making websites and web content accessible to a broad range of users with disabilities.

The AODA regulations define a “new internet website” as either a website with a new domain name or a website with an existing domain name undergoing a significant refresh.  Although there is no industry standard definition for significant refresh, the Ontario Ministry of Community and Social Services’ Regulation Guidelines (a supplement to the AODA regulations) notes that any one or more of the following could constitute a “significant refresh”: (1) a new look and feel to the website; (2) a change in how users navigate around the website; and (3) a major update and change to the content of the website.  This final item is rather broad and there is no detailed definition, but the Ministry noted that content could include any information that may be found on a web page or web application, including text, images, forms and sounds.  

Large organizations are required to meet the WCAG 2.0 Level A requirements unless it is not practicable to do so.  Practicability refers to the organization’s ability to modify its websites and web content given all of the organization’s circumstances, including the availability of commercial software or tools and its impact on transactional applications.

Large organizations that fail to comply with the AODA after the Ontario Ministry of Community and Social Services (the enforcing agency) has made prior determinations of non-compliance may face severe penalties of up to $100,000 (Canadian) per day

Accordingly, U.S. companies that have 50 or more employees in Ontario and a website that reaches Ontarians should consult with their Canadian attorneys about these requirements and take prompt action.

By Kristina M. Launey

On July 11, 2013, from 2:30 – 4:00 EST, the US Access Board will hold a free webinar to review requirements in the internationally recognized Web Content Accessibility Guidelines, also known as WCAG 2.0, issued by the World Wide Web Consortium (W3C). The Board has proposed referencing the WCAG 2.0 to address web accessibility in updating its Section 508 standards for information and communication technology.  As we discussed in previous posts, WCAG 2.0 Level AA has also been proposed as the standard for the DOJ to adopt in pending Title II and Title III regulations.

Visit www.accessibilityonline.org to register for this webinar.

By Minh N. Vu 

Title II Changes Come First: The Department of Justice (DOJ) recently announced a new July 2013 date for issuing a Notice of Proposed Rulemaking (NPRM) to amend its Title II ADA regulations that would address the obligations of state/local governments to make their websites accessible to and usable by individuals with disabilities.  The DOJ stated that the NPRM will “propose the scope of the obligation to provide accessibility when persons with disabilities access public websites, as well as propose the technical standards necessary to comply with the ADA.”

Then Title III: The DOJ also stated that it will issue a separate proposed regulation in December 2013 to address the obligation of public accommodations (entities that do business with the public) to provide accessible websites and the technical standards that they must follow.

Why the Difference?  It is not clear why the DOJ decided to conduct separate rulemakings for state/local governments and public accommodations, especially since there is no apparent reason why DOJ would adopt different technical standards for the websites of state/local governments versus public accommodations.  In light of that, the technical standards adopted for the former should provide a preview of the technical standards that will be adopted for public accommodations.  As we stated in our earlier blog posts, the standard will most likely be some form of the Worldwide Web Consortium’s (WC3) Website Content Accessibility Guidelines (WCAG) version 2.0.