When it comes to accommodating clients’ needs, whether your website is accessible to those with vision, hearing, or cognitive disabilities is not often a concern that readily comes to mind. However, lawsuits regarding web accessibility under the Americans with Disabilities Act (ADA) are being filed at an increasing rate. Lawsuits filed in federal court in 2018 are expected to surpass 2017 filings by 30%. This begs the question: what makes a website accessible? This question has plagued various public and private entities subject to the ADA for several years. Previously, the SC Employers’ Blog informed readers that the Department of Justice was expressing the real possibility of incorporating the World Wide Web Commission’s (W3C) Web Content Accessibility Guidelines (WCAG) 2.0, AA guidelines into the ADA regulations. However, the DOJ changed tacks and placed rulemaking related to web accessibility on the “Inactive” list.

In the interim, the W3C has bolstered its web accessibility guidelines, with the aptly named Web Content Accessibility Guidelines (WCAG) Level 2.1. The WCAG 2.0 guidelines set forth compliance guidelines to achieve four general principles: perceivable, operable, understandable, and robust. Under these four general principals were 61 individual points of criteria.  The key benchmarks (read flash points for litigation) of WCAG 2.0 include: captions for videos; requirements for color contrast and font sizes; keyboard only navigation; and alternative text coding that is compatible with screen reading software. The updated WCAG 2.1 standards expand upon the WCAG 2.0 standards by adding 17 additional success criteria to address accessibility issues not contemplated when the WCAG 2.0 standards were created in 2008. Indeed, the smart phone was in its infancy at that time, so it is no surprise that the updates incorporated in the WCAG 2.1 standards are geared, in part, towards mobile devices. Like the WCAG 2.0 standards, WCAG 2.1 still maintains A, AA, and AAA compliance levels. By complying with the WCAG 2.1 standards, one is also complying with the WCAG 2.0 standards.

One example of the new requirements set forth in the WCAG 2.1 standards prohibits the screen orientation from being restricted to one display (i.e., portrait or landscape), unless a specific display is essential (emphasis in original). The guidelines provide that examples where screen orientation may be essential are a bank check or a piano application. Another example is that users must be warned of the duration of any user inactivity that could cause data loss, unless the data is preserved for more than 20 hours when the user does not take any actions. In this instance, privacy regulations may require explicit user consent before user identification has been authenticated and before user data is preserved. A final example (but not exhaustive) requires that the size of the target for pointer input (i.e., a mouse, pen, or touch contact) be of a certain pixel size, with a few exceptions.

It is important to emphasize that the WCAG standards are industry standards and are not currently included in the statutes or accompanying regulations of the ADA. While some courts in various jurisdictions and previous settlements with DOJ investigations have required entities to conform to the WCAG 2.0 standards, other courts have found that to impose these standards would violate due process in the absence of DOJ rulemaking. What these standards do represent is a best practice for web accessibility. While time will tell if the WCAG 2.1 standards will obtain the same preferential treatment that the WCAG 2.0 standards has garnered, the W3C stresses that “the use of WCAG 2.1 [will] maximize future applicability of accessibility efforts.”

To read WCAG 2.1, click here.

Recently, the District Court for the Southern District of Florida held in Gil v. Winn-Dixie Stores, Inc., that Winn Dixie’s website violated Title III of the Americans with Disabilities Act (“ADA”), and awarded the plaintiff attorneys fees and injunctive relief. Many believe this to be the first trial regarding website accessibility to date. While this opinion is not binding on any other district—or even other judges within the Southern District of Florida—it is intriguing for several reasons.

Title III of the ADA prohibits the owner of a place of public accommodation from discriminating “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 . . . .” In this particular case the plaintiff, an individual who is legally blind and has cerebral palsy, alleged he could not access online digital coupons, refill his prescriptions, or locate nearby stores.

Reason 1: The court found that Winn-Dixie violated the rights guaranteed to a disabled individual under Title III of the ADA by not providing services it offers through its website in an effective, accessible format for the plaintiff. This opinion comes at a time when other courts have recently provided defendant-friendly language in dismissing website accessibility lawsuits. Winn-Dixie determined that “[w]here a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations,” a website is a service of a public accommodation and is covered by the ADA.

Reason 2: The court endorsed the Worldwide Web Consortium’s (W3C) Web Content Accessibility Guidelines 2.0 (WCAG 2.0) as the standard of accessibility; an endorsement not widely seen in case law given the lack of official regulations on website accessibility for public accommodations. The DOJ has expressed its preference for these standards in advance notices of proposed rulemaking dating back to 2010, but has yet to issue any regulations on website accessibility. These standards were required by the injunction included in the opinion, with deadlines for compliance to be agreed upon by the parties.

Reason 3: The court confirmed that “where a website is wholly unconnected to a physical location, . . . the website is not covered by the ADA.” This is in line with the majority of circuits, which require that a place of public accommodation must be a physical place. In jurisdictions requiring that a public accommodation be a physical place, courts employ a “nexus analysis,” which allows courts to determine that a website is subject to the ADA without having to determine that a website is in and of itself a public accommodation. The takeaway here is that in those jurisdictions that require a public accommodation be a physical place (Third, Sixth and Ninth Circuits), a website that is not connected to a business with a physical location, but whose services exist solely online is likely not going to be subject to the ADA.

Reason 4: The opinion is also significant for what it did not discuss—the auxiliary aid requirement.  In website accessibility suits in the past, defendants have argued that having a live, in-person representative, who could field phone calls from disabled individuals experiencing accessibility problems, was an appropriate auxiliary aid under the flexible regulations currently in place. A California court recently noted, “Plaintiff has failed to articulate why either Defendant’s provision of a telephone hotline for the visually impaired . . . does not fall within the range of permissible options afforded under the ADA.” In Winn-Dixie, this issue was not squarely before the court. The court noted Winn-Dixie spent $2 million in 2015 to open its current website, and spent $7 million in 2016 to remake the website for its online rewards program, “Plenti.” Moreover, Winn-Dixie’s vice president of IT, Application and Delivery testified that it was feasible for the website to be modified to be accessible to the disabled. Winn-Dixie submitted that it would cost $250,000 to integrate the WCAG 2.0 standards. A third party website accessibility testing company estimated the cost at $37,000. Either way, given the recent, large expenditures on its website, Winn-Dixie could not claim it would be an undue burden to bring its website into compliance.

Reason 5: The court did not require its website to be compatible will all varieties of screen reader software on the market, but only the main screen reader software programs, such as NVDA or JAWS. It is the responsibility of those less widely used screen reader programs to make themselves compatible. The court came to the same opinion with internet browsers, and noted that the main stream browsers such as Google Chrome, Internet Explorer, and Safari, already comply with WCAG 2.0 standards.

Winn-Dixie is likely the first of what could be many trial orders on Web Accessibility in the coming year. While most of these cases settle after the motion to dismiss or summary judgment stage, the ever increasing number of filings and the lack of DOJ guidelines on web accessibility ensure that these issues will continue to be relevant.

Today’s post is authored by Drew Rawl, a commercial litigator in our Greenville, SC office. Read Drew’s past blogs on this subject.

Recently, the SC Employers’ Blog alerted you to a rising trend where serial claimants send demand letters to various private companies alleging the company’s website discriminates against individuals who are blind or visually impaired. That blog discussed a proposed Department of Justice (“DOJ”) rule, which would clearly define accessibility guidelines for public accommodations under Title III, and it was thought that the DOJ would implement those rules in 2018.

All recent signs are now suggesting otherwise. A recent Executive Order seems to put the DOJ rulemaking on website accessibility on hold for the foreseeable future. On January 20, 2017, all administrative agencies were temporarily “frozen” via a White House Memorandum, in order for the new agency heads appointed by President Trump to review all policies and proposed rules, and determine what agency initiatives would be continued or disbanded. On January 30, the President issued Executive Order 13771 titled “Reducing Regulation and Controlling Regulatory Costs.” This Order was issued to manage “costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.”

Executive Order 13771 sets forth three guidelines for federal agencies moving forward:

  1. For every new regulation issued, at least two prior regulations must be identified for elimination. In addition, the cost of planned regulations should be prudently managed and controlled through a budgeting process, according to the order.
  2. Second, the order requires that the “total incremental cost of all new regulations, including repealed regulations, should be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (“Director”).”
  3. Finally, any new incremental cost associated with a new regulation shall be offset by the elimination of existing costs associated with at least two prior regulations. This imposes a cap on the cost for new regulations in 2017 at $0.

For 2018 and beyond, each agency head shall identify the incremental cost for each regulation, the offsetting regulations, and provide the agency’s best approximation of the total costs or savings associated with each new regulation or repealed regulation. Under this order, the Director is required to identify a total amount of incremental costs that will be allowed for each agency when issuing new regulations and repealing regulations for the next fiscal year during the Presidential budget process.

This then begs the question, “What does this mean for DOJ’s proposed rulemaking regarding website compliance under the ADA?” The DOJ clearly feels that websites are subject to the ADA, but given the constraints imposed on future rulemaking by Executive Order 13771, the DOJ will have to carefully select what regulations it chooses to roll out in the future. This means the general accessibility mandate required by the ADA is likely to be the law for the foreseeable future. As explained in our previous blog post, the general accessibility mandate, or the “auxiliary aid requirement,” requires that a public accommodation take necessary steps to ensure no individual with a disability is excluded, denied services, segregated or otherwise treated differently, unless the public accommodation can demonstrate that taking those steps would fundamentally change the nature of the goods or be unduly burdensome. What type of auxiliary aid will suffice is still to be determined through case law or any forthcoming rulemaking, whenever that may be.

On March 20, the Central District of California recently dismissed a case due in part to the DOJ’s failure to specify what an accessible website is under the ADA. The Court in Robles v. Dominos Pizza, LLC, No. CV 16-06599 SJO (SPx) (C.D. Cal. Mar. 20, 2017) granted Dominos motion to dismiss on the grounds that Plaintiff’s attempted imposition of the WCAG 2.0 Standards “flies in the face of due process.” The court referenced the DOJ’s prolonged rulemaking process for the ADA’s website accessibility standards and noted the questions the DOJ raised more than seven years ago are still unanswered. To require Dominos to comply with the WCAG 2.0 standards “without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic” violates Dominos’ due process rights. The court dismissed the plaintiff’s causes of action without prejudice, pursuant to the primary jurisdiction doctrine. Generally speaking, a court invoking the primary jurisdiction doctrine is deferring to the expertise and uniformity of the relevant agency, rather than rendering a decision on the matter that would have the effect of creating law.

The Robles court briefly discussed auxiliary aids, but provided no guidance on whether what Dominos was using sufficed. Dominos included on their website (after the suit was filed) “accessibility banners that direct[s] users who access the website using a screen reader with the statement: ‘If you are using a screen reader and are having problems using this website, please call 800-254-4031 for assistance.’” This number was staffed by a live representative who provided blind or visually impaired individuals with assistance. The court did not rule on whether this was an appropriate auxiliary aid, but did note, “Plaintiff has failed to articulate why either Defendant’s provision of a telephone hotline for the visually impaired or it’s compliance with a technical standard other than the WCAG 2.0 does not fall within the range of permissible options afforded under the ADA.” Other agencies and companies have employed live phone representatives in a similar manner. While this seems to be ensuring “effective communication” between the public accommodation and the disabled individual, we have yet to find a case where a court has explicitly approved this under the law.

As the amount of website accessibility cases increase, we can only expect increased pressure on the DOJ to issue clear and defined rules on website accessibility.

Today’s blog post is authored by Drew Rawl, a commercial litigator based in our Greenville office.

Websites and mobile apps (collectively “website(s)”) are a common tool used by businesses of all varieties and sizes to reach current and potential customers. They have revolutionized the manner in which businesses advertise and service customers. While websites may be a convenient way to reach a wider audience, they may, however, be a potential source of liability with regards to Title III of the Americans with Disabilities Act (ADA).

In addition to prohibiting disability discrimination in the terms and conditions of a person’s employment, the ADA also prohibits discrimination on the basis of disability in the full and equal enjoyment of places of public accommodation (privately operated entities, such as banks, movie theaters, and retailers whose operations affect commerce and that fall into one of twelve categories listed in the ADA), and requires places of public accommodation to comply with ADA standards.

Plaintiffs’ lawyers are threatening suit against companies’ whose websites and mobile apps are not accessible by the blind and visually impaired and thus denies those that are blind or visually impaired the same opportunity to the “full and equal enjoyment” of goods and services of the place of public accommodation. A complaint would seek to require the company to embed their website with invisible text, which could be read by screen reader software.

Exactly how websites fit into ADA governance is a transient area of the law. Courts are currently split on the issue, but the law is trending toward requiring compliance. Indeed, the Department of Justice (the agency charged with promulgating rules and regulations under the ADA) has opined the ADA covers websites, and that it intends to engage in future rulemaking on this topic.[1]  A minority of jurisdictions (First and Seventh Circuits) have found that a place of public accommodation need not be a physical place.[2] However, a majority of jurisdictions (Third, Sixth, Ninth, and likely the Eleventh Circuits) have found that a place of public accommodation must be physical place.[3] In those jurisdictions where a public accommodation does not have to be a physical location a website is found to be public accommodation, and consequently absolutely subject to Title III of the ADA.[4]

Websites still may be subject to the ADA in jurisdictions requiring a public accommodation be a physical place. A website could still be in violation if there is a “nexus” or connection between the challenged services and goods offered through a website and the physical place of the public accommodation.[5]

While websites must likely comply with the ADA, the standard for compliance is flexible and gives much discretion to the public accommodation. The ADA contains what is known as the “Auxiliary Aid Requirement.” 28 C.F.R. § 36.303 requires that a public accommodation take necessary steps to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently because of the absence of auxiliary or supplemental aid that would remove barriers to the disabled individual, unless the public accommodation can demonstrate that taking those steps would fundamentally change the nature of the goods or be unduly burdensome. The DOJ has explained that the ADA obligates public accommodations to communicate effectively with customers who have disabilities concerning hearing, vision, or speech. The type of auxiliary aid or service necessary to ensure effective communication is left to the public accommodation provided that the public accommodation is actually, effectively communicating with the individual and the individual’s disability does not prevent that individual from enjoying the goods and services offered by the public accommodation.

While the “auxiliary aid” standard may be the law now, it looks as though more definitive standards are on the horizon. In an Advanced Notice of Proposed Rulemakings (ANPRM), the DOJ has favored Web Content Accessibility Guidelines (“WCAG”) 2.0 Level AA standards. WCAG Standards were created by the Web Accessibility Initiative of the World Wide Web Consortium (“W3C”). The WCAG 2.0 contains three different thresholds of accessibility; A, AA, and AAA. The DOJ’s most recent ANPRM was withdrawn in April 2016, but the DOJ contemporaneously issued a Supplemental Advanced Notice of Proposed Rulemaking that seeks additional information on what standards it should put in place regarding website accessibility. While it is unclear what standards the DOJ will ultimately adopt, industry experts predict it will adopt the current WCAG 2.0 AA standards. Moreover, recent settlement agreements involving claims the DOJ has pursued against public accommodations have required the public accommodation to put in place the WCAG 2.0 standards, not only with their website, but with mobile apps and sites meant for mobile browsing.

With this in mind, best practices would recommend a proactive approach towards adopting the WCAG 2.0 AA standards. It appears a website embedded with alternative text to allow a blind individual to navigate the website would satisfy most claimants. At the very least a public accommodation must show it can effectively communicate with a disabled individual.

Today’s blog post is authored by Drew Rawl, a commercial litigator based in our Greenville office.

 

[1] 28 CFR part 35, app. A, 75 FR 56163, 56236 (Sept. 10, 2010).

[2] See Carparts Distribution Center, Inc. v. Automotive Wholesaler’sAssoc. of New England, Inc., 37 F.3d 12, 18-20 (1st Cir.1994) (holding that a trade association which administers a health insurance program, without any connection to a physical facility, can be a “place of public accommodation”); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (noting, in dicta, that a “place of public accommodation” encompasses facilities open to the public in both physical and electronic space, including websites).

[3] See Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006, 1014 (6th Cir.1997) (holding that “the clear connotation of the words in § 1218(7) is that a public accommodation is a physical place,” because “[e]very term listed in § 12181(7) … is a physical place open to public access”); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3rd Cir.1998) (holding that “the plain meaning of Title III is that a public accommodation is a place,” and that § 12181(7) does not “refer to non-physical access”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-16 (9th Cir.2000) (following Parker and Ford ); Stevens v. Premier Cruises, Inc.,[3] 215 F.3d 1237, 1240–41 (11th Cir. 2000) (Noting that § 12181(7) is comprehensive and Congressional intent was not for the ADA to have a broad reach, so while a cruise ship by itself is not a place of public accommodation, the places on the cruise ship which are specifically enumerated by the statute are public accommodations under the statute).

[4] Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp.2d 196 (D. Mass. 2012).

[5] Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp.3d 565 (D. Vt. 2015); National Fed’n of the Blind v. Target Corp., 452 F. Supp.2d. 946 (N.D. Cal. 2006).