Americans With Disabilities Act: Digital Accessibility May 22, 2019 *This presentation is offered for informational purposes only, and the content should not be construed as legal advice on any matter.
Overview • Title III of the ADA: “public accommodations” and the definition of a “disability” • Regulatory landscape: websites and mobile apps as a “public accommodation” • DOJ rulemaking • DOJ enforcement actions • Other laws and regulations • WCAG 2.0 and 2.1 Standards • Latest litigation developments: demand letters and recent cases • Mitigating risk and vendor selection www.dlapiper.com 2
Title III of the ADA “Public accommodations” and the definition of “disability” www.dlapiper.com 3
Title III of the ADA • Title III of the ADA (public accommodations) prohibits discrimination against people with disabilities by “a place of public accommodation:” 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.C. § 12182(a); 28 C.F.R. § 36.201. • ADA covers 12 categories of private entities that are “places of public accommodation.” 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104 www.dlapiper.com 4
Title III of the ADA (cont.) • Title III of the ADA requires that public accommodations provide to persons with disabilities: • Equal access to goods, benefits and services • Auxiliary aids and services (“accessible electronic information technology”) at no extra charge to ensure effective communication absent undue burden or fundamental alteration • Effective communication must be provided in a method that respects the privacy and individuality of people with disabilities • Title III of the ADA permits only injunctive relief and recovery of attorneys’ fees for persons bringing a private cause of action • Civil penalties for violations not permitted. • If DOJ alleges a violation of Title III, a court can fine the violator up to $50,000 for the first violation and up to $100,000 for each subsequent violation, but no punitive damages are permitted www.dlapiper.com 5
What is a “disability” Statutory – 42 USC §12102 (1) • The term “disability” means, with respect to an individual: • A physical or mental impairment that substantially limits one or more major life activities of such individual • A record of such an impairment • Being regarded as having such an impairment (as described in paragraph (3)) • An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity Practical Categories • Sensory – An impairment of one of the five senses • Cognitive – An impairment of the cognitive process • Mobility – An impairment of an access of motion • Speech – An impairment in the ability to speak www.dlapiper.com 6
A graying globe People are getting older… and actively using technology! • The number of people worldwide aged 80 and over will quadruple to 400 million “42% of adults ages 65 and older owning smartphones • For the first time in history, there will be is up from just 18% in 2013.” more people over the age of 65 than under the age of 14 “67% of seniors use the internet – a 55-percentage-point increase in just under two decades.” “45% of seniors under the age of 75 say they … use social networking sites, compared with Sources: United Nations World Population Prospects, U.S. Census Bureau’s 2017 National Population Projections, 20% of those ages 75 and older.” McKinsey & Co., Pew Research Center Tech Adoption Climbs Among Older Adults www.dlapiper.com
Disability prevalence by age 10.2% 15 to 24 5.3% With a disability 11.0% 24 to 44 Severe disability 7.3% 19.7% 45 to 54 13.8% 28.7% 55 to 64 20.4% 35.0% 65 to 69 24.7% 42.6% 70 to 74 29.6% 53.6% 75 to 79 37.5% 70.5% 80 and over 55.8% Source: US Census Bureau, Survey of Income and Program Participation www.dlapiper.com
Digital accessibility is a global issue Laws, regulations & standards are growing • UN Convention on rights of persons with disabilities • Core aspect of the global convention is access to information • Level access is proud to have worked with UNESCO, GAATES and presented at the UN • We understand the accessibility challenges of emerging and developing nations, and access through mobile devices at a deep level • Contributed to establishing standards at the W3C: • WCAG 2.1, ARIA, Low Vision TF, Mobile a11y TF 177 State Party Ratified 11 State Signatory • Accessibility conformance TF; EU accessibility studies No Action 10 • Trusted tester and harmonized processes US Federal government Map: UN Office of the High Commissioner on Human Rights (OHCHR) Status of Ratification Dashboard. www.dlapiper.com
Regulatory landscape Websites and mobile apps as a “public accommodation” www.dlapiper.com 10
Background & status of DOJ rulemaking • In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) stating its position that websites for public accommodations must be accessible to persons with disabilities • Requested comments on appropriate website accessibility standards • What is the legal standard for accessibility? • DOJ’s 2010 ANPR suggested standards promulgated by the World Wide Web Consortium (W3C) – specifically, Web Content Accessibility Guidelines Version 2.0 with AA (intermediate) success criteria (WCAG 2.0 AA). • Because WCAG 2.0 AA was cited in DOJ’s ANPR and subsequently adopted in DOJ enforcement actions, it was the presumptive legal standard • In Fall 2015 Statement of Regulatory Priorities, DOJ stated proposed rulemaking would not be issued until at least 2018 www.dlapiper.com 11
DOJ enforcement actions Representative DOJ ADA settlements involving websites and/or mobile apps and requiring compliance with WCAG 2.0: • Quick Trip (settlement agreement) — July 2010 • Hilton Worldwide (lawsuit/consent decree) — November 2010 • Law School Admissions Council (settlement agreement) — April 2011 • Louisiana Tech University (settlement agreement) — July 2013 • H&R Block (lawsuit/consent decree) — February 2014 • Florida State (settlement agreement) — June 2014 • Peapod (settlement agreement) — November 2014 • Museum of Crime & Punishment (settlement agreement) — January 2015 • edX (settlement agreement) — April 2015 • Harvard & MIT (statement of interest) — June 2015 • Carnival Cruise Lines (settlement agreement) — July 2015 • Miami University (consent decree) — December 2016 www.dlapiper.com 12
Common themes: DOJ expectations • Since 2014, expectation has been compliance with WCAG 2.0 AA • Title III applies to discrimination in the goods and services of a place of public accommodation, rather than being limited to those goods and services provided at or in a place of public accommodation • Websites with no nexus to a brick and mortar location are also covered under Title III of the ADA (rejected by some circuits) • Comprehensive compliance plan to support that standard is also expected, which typically includes: • Engagement of independent accessibility consultant for initial audit • Formal accessibility policies and procedures • Designated personnel responsible for digital platform accessibility • Accessibility training for development teams • Ongoing monitoring to maintain compliance • Reporting channels for consumers and internally www.dlapiper.com 13
Latest DOJ statements on applicability of Title III to websites • DOJ under Trump Administration initially put the ANPR on the “inactive” list, and then at the end of 2017, they formally withdrew four ANPRs pertaining to the ADA • In late 2018, DOJ wrote at least two letters to Congress (one to Sen. Grassley and the other to Cong. Budd) affirming the applicability of the ADA to websites of places of public accommodation • The DOJ noted that the lack of specific technical requirements gives public accommodations flexibility in how to comply with the ADA • Accordingly, the DOJ noted that noncompliance with a voluntary technical standard – does not mention WCAG 2.0 directly – does not necessarily indicate noncompliance with ADA • This is a significant change from DOJ’s earlier position which relied heavily on WCAG.2 AA www.dlapiper.com 14
Other laws requiring web/mobile accessibility • In addition to ADA Title III: • Section 504 Rehabilitation Act for recipients of federal funding • Section 508 Rehabilitation Act for technology sold to the federal government • Section 1557 of the ACA requires digital accessibility for specific parts of health care programs • Air Carrier Access Act requires primary websites of airline carriers to conform to WCAG 2.0 AA. • State Non-discrimination Laws application to pubic accommodations (ie, California Unruh Act) www.dlapiper.com 15
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