Website Accessibility Legal Requirements and Practical Considerations - PDF document

Website Accessibility Legal Requirements and Practical Considerations 2017 NYSSBA Summer Law Conference – Long Island July 27, 2017 Presented By: Lawrence Tenenbaum, Esq. Partner Jaspan Schlesinger LLP (516) 746 ‐ 8000 Ltenenbaum@jaspanllp.com 1

Importance of Web Accessibility (video slide) Importance of Web Accessibility • “The power of the Web is in its universality. Access by everyone regardless of disability is an essential aspect.” – Tim Berners ‐ Lee, Inventor of the World Wide Web and Web Accessibility Initiative Director 2

Web Accessibility Defined • The Web Accessibility Initiative defines web accessibility as allowing “people with disabilities [to] perceive, understand, navigate, and interact with the Web, and [to] contribute to the Web.” – https://www.w3.org/WAI /intro/accessibility.php Disabilities That Affect Access • Visual Impairments – May Consist Of: • Mild to Complete Vision Loss • Color Blindness • Increased sensitivity to bright colors • Deaf ‐ Blindness – Barriers May Consist Of: • Images and text cannot be enlarged • Images do not contain audio alternatives • Inadequate color contrast • Websites do not provide full keyboard support 3

Disabilities That Affect Access • Hearing Impairments – May Consist of: • Mild to Complete Hearing Loss • Deaf ‐ Blindness – Barriers May Consist Of: • Videos do not contain captions • Lack of volume controls • User cannot adjust the size and color of captions Disabilities That Affect Access • Cognitive, Learning and Neurological Disabilities – May Consist Of: • Multiple Sclerosis • Perceptual Disabilities (i.e. dyslexia or dysgraphia) • Autism Spectrum Disorder • Attention Deficit Hyperactivity Disorder – Barriers May Consist Of: • Navigation that is difficult to understand and use • Complex words and sentences • Pages that contain predominantly text 4

Disabilities That Affect Access • Physical Disabilities – May Consist Of: • Reduced Dexterity • Amputation • Partial or Total Paralysis • Muscular dystrophy – Barriers May Consist Of: • Lack of full keyboard support or speech recognition • Inadequate time limits Assistive Technology • Screen Readers • Text Readers • Screen Magnification • Speech Input Software • Alternate Keyboards 5

Applicable Statutes • Section 504 of the Rehabilitation Act – “No . . . qualified individual with a disability . . . shall, . . . be excluded from the participation in, be denied the benefits or, or be subject to discrimination under any program or activity receiving Federal financial assistance.” 29 USC § 794. • Title II of the American Disabilities Act – Generally prohibits discrimination against individuals with disabilities. – As it relates to communications, Title II states that “[a] public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” 28 C.F.R. 35.160(a)(1). Enforcement • The U.S. Department of Education’s Office for Civil Rights is responsible for enforcing section 504 of the Rehabilitation Act and Title II of the ADA. • As of May, 2016, the OCR was investigating over 350 educational institutions. 6

The Complaint • The OCR reacts to complaints filed against districts by third parties. – One Michigan advocate has filed over 500 web accessibility complaints. • The OCR will initiate an investigation if its review indicates accessibility issues. • According to the OCR, the most common issues are: – Important website content can only be accessed by a computer mouse. • Barrier to those with low ‐ vision or disabilities affecting motor control. – Uses color combinations that makes text difficult to see. • Barrier to those with low ‐ vision. – Videos are not accurately captioned. • Barrier to those who are deaf. OCR’s Investigation • The OCR usually sends a letter informing the school district that it has initiated an investigation. • OCR acts as a neutral fact ‐ finder. • OCR will employ various fact ‐ finding techniques: – Reviewing documentary evidence – Conducting interviews – Site visits • The letter typically includes “OCR’s Complaint Processing Procedures.” – However, OCR has internally changed its investigation procedures. 7

OCR’s Investigation • On June 8, 2017, the following changes took effect: – Regional directors shall determine what comparative data is necessary. • Eliminates requirement to provide three years of past data – Regional directors shall make a case ‐ by ‐ case determination of the evidence necessary to conduct a “legally sound” investigation. • Originally, certain complaints utilized a “one size fits all” approach. – Regional directors should “reach reasonable resolution agreements with defined, enforceable obligations placed upon recipients directly responsive to addressing the concerns raised in the individual complaint . . . , and encourage voluntary settlements wherever possible.” OCR’s Investigation • OCR’s Data Request – Likely require the district to respond to specific questions and disclose documentary evidence relevant to web accessibility. – May include: • District policies and procedures • Software and design specifications used • The vendors responsible for the maintenance of the District’s website 8

Resolution Agreements • OCR encourages “Early Complaint Resolution” – OCR states that “Early Complaint Resolution allows the parties . . . an opportunity to resolve the complaint allegations quickly; generally soon after the complaint has been opened for investigation.” • Advantages – Avoid negative press – Avoid penalties • Loss of federal funding • Referral to the Department of Justice – No finding or admission of guilt or wrongdoing Resolution Agreements • Frequently Include the Following Provisions: – Benchmarks for Measuring Accessibility – Auditing – Policy and Procedure Changes – Corrective Action Plan 9

Resolution Agreements • Benchmarks for Measuring Accessibility – Will likely incorporate the two widely recognized international web accessibility standards. • World Wide Web Consortium’s Accessibility Guidelines 2.0 (WCAG) Level AA – Sets forth four guiding principles in ensuring web accessibility. » Understandable » Robust » Perceivable » Operable • Web Accessibility Initiative Accessible Rich Internet Applications Suite – Provides the tools necessary to ensure accessibility of complex web interfaces. Resolution Agreements • Auditing – Designate an auditor • Responsible for auditing web content and functionality. – The audit will likely utilize the “Benchmarks for Measuring Accessibility.” – District may have to contact individuals with disabilities to seek input. 10

Resolution Agreements • Policy and Procedure Changes – Timeline to submit revised policies and procedures. – Ensure that all online content is accessible. • Conforms to the “Benchmarks for Measuring Web Accessibility.” – Include a system of testing and accountability. – Subject to OCR approval. Resolution Agreements Corrective Action Plan • – Address issues raised during audit. – Detailed timeline for correcting problems. – Failure to comply with the Corrective Action Plan could constitute a violation of the agreement. • OCR may initiate judicial proceedings or administrative enforcement of agreement. • Penalties may include loss of federal funding or referral to the Department of Justice. – Training 11

Avoiding an Investigation • Evaluate all aspects of District’s website. – Keep in mind the “Benchmarks for Measuring Accessibility.” • Consider retaining an outside auditor/vendor. • Community outreach. • Revise policies and procedures. • Training Website Accessibility Legal Requirements and Practical Considerations 2017 NYSSBA Summer Law Conference – Long Island July 27, 2017 Presented By: Lawrence Tenenbaum, Esq. Partner Jaspan Schlesinger LLP (516) 746 ‐ 8000 Ltenenbaum@jaspanllp.com 12