Website Accessibility Case Studies, State of the Law and Concerns for Corporate Counsel

1. Lunch and Learn for Website Accessibility Case Studies, State of the Law and Concerns for Corporate Counsel Steve Helland, Fredrikson & Byron Aaron Cannon, Accessible360 Michele Landis, Accessible360 October 11, 2017

2. Overview • Website and Technology Accessibility • Trends and demographics • What does accessibility mean? • What the law requires • ADA, Rehabilitation Act, ACA 1557, States • Key cases and litigation • Reducing risk and practical tips

3. 2008: Class Action Settlement

6. Digital Accessibility Is the inclusive practice of removing barriers that prevent interaction with websites & apps for people with disabilities.

7. Assistive Technologies Digital content correctly designed and coded, offers equal access to information & functionality via AT devices.

8. The Need for Website Accessibility • Inaccessible websites exclude many people • Digital Accessibility is being required • Plaintiff law firms are incredibly active • General public is demanding equitable access • Initiative requires a comprehensive plan

9. Compliance W3C The World Wide Web Consortium is an international community that develops open standards to ensure the long term growth of the Web • WCAG 2.0 • Web Content Accessibility Guidelines • Levels A, AA, AAA • Section508 Compliance • Long established standard for Title II entities • January 2018 will mark the switch to WCAG2.0 AA as well

10. People With Disabilities • 1 in 5 Americans …. 56.7 million people1 • With annual disposable income > $544 B2 • Wide range of disabilities across four categories • People move in and out of disabled status vision physical cognitive auditory 1 US Census Bureau 2 The Global Economics of Disability - Fifth Quadrant Analytics

12. Demos • Keyboard Only Navigation • JAWS

13. Myths It is NOT hard to do if you know what you are doing. You can make this worse without expert help. It is all we do & we are here to help Follow: WCAG2.0AA To be clear: Accessible Design is not to blame for unattractive websites, there are plenty of inaccessible websites that are unattractive. This is just a lack of understanding of accessibility It’s hard to do There’s no clear rule Accessible websites are ugly

14. Facts • By the year 2030, 71.5 million baby boomers will be over the age of 65 • Over one third of American families have at least one member with a disability • 1 in 11 men are color blind • At nearly 57M, the disability market is more than twice the size of the tween market (20M) but has almost 3X the disposable spending power ($180B) • Cascading Style Sheets (CSS) allow you to separate content from visual display • Provides more flexibility and accessibility of content • Improved web page download times • Easier management due to multiple pages being fixed at once • What you do to make your website accessible and compliant with WCAG2.0 also increases your search engine rankings

15. Methods for WCAG 2.0 AA Testing • Live-User Audits • Other “solutions”: • Add-On application • Scanning tools • Separate but “equal” site • In-house expertise: Some organizations & agencies believe they have the internal knowledge to provide digital accessibility

16. Proactive Steps to Reduce Risk • Audit desktop websites and mobile apps • Designate an Accessibility Coordinator • Training for entire organization & Developers • Accessibility Statement (external posted on site) • Accessibility Policy and Plan (internal corporate policy) • QA the remediation (re-check it with live users) • Maintain new compliant site (not a one time project)

17. Landmark Accessibility Lawsuits 9 3 11 PA Judge rules for the first time on digital accessibility, rules ADA does apply to websites 1. First Trial of a website accessibility case 2. Judge’s ruling WCAG 2.0 AA is the standard 3. Accessibility is not a financial burden 4. Responsible for compliance of 3rd party vendors $16 Million April 27th, 2017 June 12th, 2017 2011 2014 Feb 2015 June 20th, 2017 2013 & 2015 August 2017 May 2017 2008 Companies being sued multiple times BLICK - 5 Guys Rulings bring more of same: success for plaintiffs. Tried on 2 different occasions in 2 states – 2 different verdicts – 2 different Federal Courts. Same CA Court Same Issue New Ruling Contradicted Domino’s $6,000,000 + $3.7 Million in Fees 9 * 2016-2017 Repeat-suits have increased. Proactive measures can be taken to reduce them.

18. Sampling of Hundreds of Known Lawsuits and Settlements.

19. Department of Justice Settlements Common Elements of the Settlements: • Engage independent accessibility consultant for audit • Websites and apps need to meet WCAG2.0AA • Designate Accessibility Coordinator • Publish an Accessibility Statement (external) • Establish an Accessibility Policy (internal) • Solicit feedback on the websites • Offer Improved telephone support • Training for development teams • Continue to monitor websites to maintain compliance

20. What Happened: 2008  2017

21. What Does the Law Require?

22. Americans with Disabilities Act of 1990 • ADA Title III, Public Accommodations • “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S. Code § 12182.

23. What is a “Public Accommodation”? There are 50+ types of businesses Hotel RestaurantBar Bank Stadium Store Hospitals Library Health Clubs Shopping Center Health Clinics Lawyer’s Office Theaters Bowling Alley Government Offices Senior Center Real Estate Sport Stadiums Full list at: 42 U.S.C. § 12181

24. ADA Title III. Public Accommodations. • Discrimination.Includes failure to make reasonable modifications in policies, practices or procedures to make a good, service, or item available, unless the modification would fundamentally alter the nature of the goods, services, privileges or accommodations. • Discrimination. Includes failure to take steps necessary to ensure that no individual with a disability is excluded, denied service, or otherwise treated differently because of the absence of auxiliary aids and services, unless such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage or accommodation being offered or would result in an undue burden.42 U.S. Code § 12182

25. Rehabilitation Act. • Section 504. (29 U.S. Code §794) • “No otherwise qualified individual with a disability... shall… be excluded from the participation in… or be subjected to discrimination under any program or activity receiving Federal financial assistance…”

26. Rehabilitation Act • Section 508 • Scope / application of Section 508 • Compliance required as of 1998 • Adopts WCAG 2.0 AA as standard on January 18, 2018 • Undue burden exception

27. Section 1557 of the ACA

28. What is Section 1557? • Nondiscrimination provision of the Affordable Care Act. • Prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. • Extends or strengthens existing nondiscrimination laws.

29. What is Section 1557? • Much more than website accessibility and accessibility technology. • Example: Limited English Proficiency. (But our focus today is only on accessible technology, such as websites, from a disability perspective.)

30. Accessibility Required by Contract • General: “Vendor will comply with all applicable laws and regulations in providing Services and Deliverables.” • Specific: Services and Deliverables will comply with ADA, 504, WCAG2.0. • Pass-through: Vendor agrees to comply with all laws and requirements applicable to Customer.

31. What Does A Lawsuit Allege?

32. Courts and Judges Disagree.

33. National Federation of the Blind v. Target, 452 F.Supp.2d 946 (N.D. Cal., 2006). • Complaint: target.com website is inaccessible to the blind and therefore violates the ADA and state law. • On Target’s motion to dismiss: • Claims that target.com has a nexus to goods and services offered in store survive • Court grants dismissal of claims to the extent target.com does not impact enjoyment of goods and services offered in store Case ultimately settled. Target agrees to payment and site improvements.

34. Cullen v. Netflix, No. 13-15092 (9th Cir., unpublished, 2015). • Contrast: National Association of the Deaf v. Netflix, 869 F. Supp.2d 196 (D. Mass. 2012).

35. Robles v. Dominos Pizza, Case No. CV 16-06599 SJO (March 20, 2017, Cent. Dist. Cal.).

36. Gorecki v. Hobby Lobby, Case No. CV 17-1131-JFW(SKx) (June 15, 2017, Cent. Dist. Cal.)

37. Gil v. Winn Dixie Stores, Case No. 16-23020-Civ (June 16, 2017, S. D. Fla.).

38. Early Fall: Moot? Stay? • Issue: Multiple follow-on • lawsuits with similar claims • Strategy: Public settlement terms

40. Bottom Line On Litigation: • 90%+ of Cases settle in 2 days – 6 months. • Most but not all cases survive a defense motion for summary judgement. • Judicial concern with copycats. • Courts are split. Legal arguments continue to evolve..

41. What Does a Private Demand Letter Look Like?

42. Carlson Lynch letter “scan”

43. Scanning Software – U.S. Government

44. Scanning tools miss more than 50% of real accessibility issues. • Reports are not informative enough for developers to know what is a false return, what really needs to be fixed or how to do make the fixes. • * Source: • https://alphagov.github.io/accessibility-tool-audit/

45. Scanning Tools Are Unreliable. Accessibility is a Human Test.

46. What Does a Private Demand Letter Look Like? • Self-report and repay govt funds received:

47. What is Discrimination? What is Accessibility? What must a website operator do, to avoid discrimination? • U.S. Dept. of Justice: WCAG2.0AA • Some plaintiffs: WCAG2.0AA • Gil v. Winn-Dixie Stores, Dist. Ct. FL: WCAG2.0 (June 16, 2017)

48. WCAG2.0AA Highlights: • https://www.w3.org/TR/WCAG20/ • Provide alt-text / text alternatives for images • Captions for videos • Keyboard navigation (not mouse) • Consistent design • Color contrast

49. Action Items to Reduce Risk, Promote Compliance: • Audit website (+ apps) • Improve website (+preserve evidence) • Assess the remediation (re-check) • Post Accessibility Statement, External • Accessibility Policy and Plan, Internal • HR portals & Vendor Contracts • Insurance (Cyber/ Website) • [continued on next slide]

50. Action Items to Reduce Risk, Promote Compliance: • Monitor, its not just one-time event • Train • Accessibility Coordinator • Alternate methods (telephone support) • Website Terms and Conditions • Don’t ignore demand letter (start working on improving your site)