Americans with Disabilities Act – Making Websites Accessible

1. Americans with Disabilities Act – Making Websites Accessible Mercedes Kelley Tunstall, Of Counsel Ballard Spahr LLP November 2010 Privileged and Confidential.

2. Americans with Disabilities Act • Statute: • 42 U.S.C. §12100, et seq. • Originally passed in 1990, most recently updated January 1, 2009. • Title III Addresses the activities of public accommodations. • Implementing Regulations: • 28 CFR §36.100, et seq., most recently updated September 15, 2010.

3. Public AccommodationsAny private entity whose operations affect commerce: • Place of lodging • Food or drink • Entertainment venue • Retail • Services (i.e., professional offices, banks, hospitals) • Museum, library, gallery • Public transportation • Parks and zoos • Any type of school • Public service centers (i.e., senior citizen centers) • Gym, bowling alley or other recreational facility

4. General Prohibition of Discrimination by Public Accommodations • 42 U.S.C. §12182(a): • 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.

5. Prohibited Activities • Denying participation to an individual based upon disability; • Requiring individual with disability to participate in a way that provides unequal benefit; • Requiring individual with disability to participate only through a separate benefit; • Unless separate benefit is necessary to provide the individual with accommodation that is as effective as that provided to others • Requiring an individual with disability to participate in a setting that is not integrated.

6. Prohibited Activities (cont.) Discrimination can also be: • Failing to provide auxiliary aid or service as necessary for accommodation, unless doing so fundamentally alters nature of accommodation 28 C.F.R. §36.303(a). • Auxiliary aid or service includes: • Interpreters or other alternatives to aural communication • Readers, taped texts or other alternatives to visual communication • Modification of equipment or devices • “. . . auxiliary aids and services [are appropriate] where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. §36.303(c).

7. Obligation to Provide Auxiliary Aids and Services • Auxiliary aid or service should ensure effective communication • Must be provided in accessible formats; • Timely; and • In a manner that protects the privacy and independence of the individual. • Public accommodation may choose which auxiliary aid or service to use, as long as communication is effective. • But, public accommodations may not: • Require individual to bring an interpreter; • Rely upon an adult accompanying individual except in an emergency or upon individual’s request • Rely upon a minor child accompanying individual except in an emergency.

8. Department of Justice Advance Notice of Proposed RulemakingAccessibility of Web Information, 75 Fed. Reg. 43460 • Comments are due on or before January 24, 2011. • Proposal: • Codify compliance with the self-regulatory guidelines described in the next slides (WCAG 2.0). • Scope would include all public accommodations that offer goods and services via the Web, either in addition to having a physical presence or exclusively online. • Web content that is personal and non-commercial would not be covered, including social media components of public accommodation websites. • Web content or links posted to a public accommodation’s website by a third-party and which are inaccessible would also not be covered. • Proposed effective date is six months after rule is published, with potential safe harbor for existing content that is not updated or modified.

9. Basic Components of Effective Web Accessibility Guidelines • Screen Readers: • The blind access websites by using keyboards in conjunction with screen-reading software that vocalizes visual information on the computer screen. • Except for a visually-impaired person whose residual vision is sufficient to use magnification, screen access software provides only method for blind persons to independently access the Internet via computers. • Unless websites are designed so that screen readers can read the pages, blind persons are unable to use the Internet. • Examples of accessible web design elements: • Alt-text to graphics; • Ensuring keyboard can be used for all functions (not just mouse); • Ensuring navigation of site by adding headings; • Using appropriate color contrast.

10. Web Content Accessibility Guidelines (“WCAG”) from the World Wide Web Consortium (“W3C”) • W3C is an international consortium promoting web “universality” through guidelines. They have released two versions of the guidelines -- WCAG 1.0 and 2.0 -- and have made recommendations for the mobile web. • WCAG “best practices” for creating accessible websites include: • Ensuring Graceful Transformation: • Separate structure from presentation • Provide text for everything on the web page • Create docs that can be used even if user cannot see or hear • Create docs that do not rely on one type of hardware (e.g., mouse, color screens, keyboards) • Make Content Understandable and Navigable • Provide easy means for navigating within and between pages • Present information in an integrated fashion (i.e., it can be difficult to understand context when page is viewable only through small sections)

11. Practical Suggestions • Ensure you have auxiliary aids or services available for all consumer-based transactions – applications, cardholder agreements, paying bills, reviewing statements, etc. • Taking applications and allowing bills to be paid over the phone (without charge) can be effective auxiliary aids or services, instead of making a website accessible. • Train customer service representatives and executive customer complaint staff to recognize when a customer is complaining about lack of accessibility. • Review of settlements shows that ending up with a settlement agreement starts with an individual customer complaint that is not handled properly. • If such a complaint is received, take any and all steps to resolve the issue with the individual first. Then, describe to the individual steps, and associated timelines, that will be taken to ensure that other customers will not have similar problems.