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Last week, Level Access CEO Tim Springer and Seyfarth Shaw partner Kristina Launey presented a free webinar on legal updates to the ADA. There were so many great questions during the webinar that we unfortunately did not have time to address, so we’ve had Tim Springer and Level Access Legal Writer Charles Hoffman provide responses in this post.

For more information on this topic, you can access the webinar slides, transcript, and recorded presentation here: ADA and the Internet: Legal Update Webinar Resources.

Webinar Q&A

Q:  What is “administrative closure” from OCR? If a public institution has been progressing on and working on digital accessibility, what is the process with an OCR letter?

A:  Administrative closure means that the complaint has been closed as a matter of the administrative process by the Office of Civil Rights (OCR)  at the Department of Education. The exact process for responding to an OCR letter depends on the specific institution, work in progress and status of the digital accessibility program. In prior administrations work in progress on digital accessibility has been viewed favorably by enforcement agencies and we expect this will continue to be the case in the current administration.

Q:  If we prompt a user to download a large document from our website, are we required to make that document WCAG compliant?

A:   Most organizations consider documents that are downloaded from a site to be part of the overall site experience. As such, most organizations either chose to make them directly accessible or provide alternatives to the documents. Since there is no specific regulation covering the ADA as it applies to websites this is a gray area. We can, however, look to other U.S. Federal Government regulation for a degree of guidance. In that case implementing regulations for both Section 508 of the Rehabilitation Act and Section 1557 of the Affordable Care Act would require the document to be accessible.

Q:  Is there a difference between Statements of Interest and Settlement Agreements?

A:  Statements of Interest are written statements filed by the Department of Justice in private lawsuits to explain the official position of the United States government. Statements of Interest are common in civil rights cases, including lawsuits filed under the ADA. Although Statements of Interest can have a significant impact on courts’ decision, they are not in themselves legally binding on the court, on the parties, or on the United States government itself.

Settlement Agreements, on the other hand, are agreements between the parties of a lawsuit ending litigation. Settlement Agreements are binding on the parties, but do not have precedential value for later cases.

Q:  Have local governments been affected by lawsuits?

A:  Yes. Historically state and local government enforcement under title II of the ADA was driven both by public and private enforcement.  Public enforcement was driven by Project Civic Access under the U.S. Department of Justice at the U.S. Federal level.

Q:  I would also like to know how many lawsuits have been filed against local government.

A:  Currently we don’t gather that data. You can, however, look to the Project Civic Access page of ADA.gov for a historic list of enforcement actions.

Q:  Does Title III only apply to public accommodations?

A:  No. In addition to prohibiting discrimination in “places of public accomodation,” ADA Title III also prohibits discrimination against persons with disabilities by private organzations that offer public transportation services. (Public transportation services offered by public agencies is covered under ADA Title II.)

Note that the list of public accomodations under Title III is quite extensive, and covers most service industries.

Q:  Does Florida require a physical location for Title III to apply?

A:  The United States Court of Appeals for the Eleventh Circuit, which includes Florida, Georgia, and Alabama, has not definitively ruled on whether standalone websites are covered under Title III of the ADA. However, most trial courts within the Eleventh Circuit, however, have required that the website have a connection with a physical place of public accomodation to fall under Title III.

Q:  Are there any details of an example an Academic industry lawsuit?

A:  In addition to universities and K-12 schools, some private organizations doing business in the academic/education industry have also been the subject of private lawsuits and OCR actions. In 2015, for instance, Educational Testing Service (ETS), which makes and administrates standardized tests such as the GRE and TOEFL, was the subject of an OCR investigation because its online registration system was inaccessible to some users with disabilities. ETS ultimately agreed to make its online registration system accessible.

Q:  If web accessibility is being tested by different tools, showing different results of a site’s accessibility, what should be considered? Do you know which tool was used to test Winn-Dixie’s site?

A:  While different tools provided different results the gold standard for technical conformance remains a well-informed expert’s opinion.  Expert’s use the tools as a base for assessing a site but extensively test the site for manual conformance issues, to scrub tools output and to assess the user impact of the issues on the site.   In the Winn-Dixie matter these expert opinions were the actual items entered into record at the trial versus the output of the tools.

A:  We don’t know what tool was used to test Winn-Dixie’s site.   As noted above, however, different tools – different outputs – but tool output is only a small part of determining if a system conforms to the relevant WCAG 2.0 requirements. 

Q:  What about nexus to other physical locations like Best Buy or Target?

A:  In determining whether a website serves as a nexus to a place of public accomodation, courts look at a number of factors, including what services are offered by the website and how they can lead customers to physical stores. Being able to search for store locations, download coupons, or order products for in-store pickup, for instance, will be major factors in finding a nexus.

Target’s website was the subject of a 2006 lawsuit, National Federation of the Blind v. Target Corp., in which a judge from the Northern District of California ruled that the retailer could be sued because its website was inaccessible to users who were blind or limited vision. The case settled prior to a final judgment on the merits.

Q:  If Winn-Dixie decided to fix their website just as soon as WCAG goes from 2.0 to 2.1, does Winn-Dixie obligate to comply with WCAG 2.1?

A:  Technically that is a question for how the settlement agreement has been developed and what Winn-Dixie agrees to. Most agreement site a specific version of the standard to conform to and the publication of a successor standard (e.g. WCAG 2.1) would not impact require an organization to shift to the new standard. Some settlement agreements do include carve outs for successor standards or U.S. government regulations that are duly promulgated but these tend to be the exceptions and not the rule.

As a practical matter, however, the difference between conforming with WCAG 2.0 and 2.1 is unlikely to be large in consideration of the overall structure of WCAG and the broad requirements in the 2.0 version. A 2.1 version is likely to extend and clarify some of the ambiguous and nebulous portions of the WCAG 2.0 requirements. So it’s unlikely this will result in some massively larger scope of requirements – more likely clarification of requirements that are already applicable.

Q:  If an international website links to the website of a US governmental entity, is the international company’s website also subject to ADA mandates?

A:  In general, no, but that would depend on a variety of factors that are best discussed with counsel.

Q:  Are there any instances [of litigation] with public libraries or K-12 schools?

A:  Yes. School districts across the country, from South Carolina to Alaska, have been the subject of OCR investigations. Libraries are less frequent targets of digital accessibility investigations/lawsuits, though they do happen. In 2012, for instance, the National Federation of the Blind sued the Free Library of Philadelphia over its use of e-readers that were inaccessible to library patrons who were blind.

Q:  What is a good monitoring tool?

A: We recommend AMP (Accessibility Management Platform) and Access Analytics from Level Access.

Q:  Is there a similar organization like the CASp for Web Accessibility?

A:  The closest organization to CASp for Web Accessibility is the International Association of Accessibility Professionals (IAAP) which provides a certification for web accessibility professionals.

Q:  Views on Wave?

A:  Free tools, such as Wave, are a common place to start for testing on accessibility.  In practice, however, they have some material limitations including (i) testing scope, (ii) ability to store and analyze results, (iii) integration with development systems and (iv) warranty backing by an experienced digital accessibility firm. Given these limitations most firms serious about compliance eventual opt into costed solutions backed by commercial firms. This has the advantage of tying any claims of compliance made based on the tools to the reputation and warranties of these firms.

Q:  Are there more examples of JavaScript based website accessibility monitoring software?

A:  There are a few solutions in the market that compete with Access Analytics, yes.

Q:  Do you like using a VPAT as one of your deliverables?

A:  If you are looking to define compliance for a product being sold into the U.S. public sector market then, yes, a VPAT can be a useful deliverable. If you are simply looking to certify the compliance of a site or application a WCAG Conformance statement tends to be a more common deliverable.  Further, this can readily be reformatted to (or more commonly contemporaneously delivered as) a VPAT2 format which supports the updated Section 508 Refresh standards.

Q:  Is there similar lawsuit data for Title II entities?

A:  In line with the response of Q: I would also like to know how many lawsuits have been filed against local government, no, there isn’t currently detailed data on lawsuits and actions against Title II entities.   There is some data on Department of Education OCR Title II enforcement actions which have grown massively in the last few years. Level Access can provide this if it is of interest.

Q:  How do you get company buy-in? If I have many digital clients, it seems to me we should reach out to them and let them know what’s going on. But we aren’t. Even government entities.

A:  Generally speaking organizations implement digital accessibility programs based on either (i) concern about accessibility litigation in their industry or (ii) in response to a direct complaint, demand letter or lawsuit pertaining to digital accessibility.  To that end we, at Level Access, focus on educating organizations about the real and material risks pertaining to enforcement in the space.

Q:  Are there any school districts in CA that have been part of the lawsuits?

A:  Yes. OCR has initiated investigations into a number of school districts/systems in California. In 2017, for instance, OCR has concluded investigations regarding the New Haven Unified School District in Union City, California, and the California School for the Blind.

Q:  Can the DoJ issue recommendations for WCAG 2.0 as the technical standard, or must it be codified to be meaningful?

A:  Sadly this is a broad question that doesn’t lend itself to the kind of pithy responses we like to provide in these formats. So, forgiving our lack of brevity: in general, the answer is that while the WCAG can be named as a base technical standard, the overall implementing regulation would likely have to address many other related issues for implementation. These would include scope of the regulations, timing on implementation, safe harbor provisions (or not), monitoring approaches, undue burden and fundamental alternation considerations to name a few. In practice this would result in a regulation that allows the technical standard to be applied in real world context in a measurable, manageable fashion. The current administration  guidance on new regulation issuance, however, deems it unlikely that such an (appropriately) substantive rule-making process would be completed in the near future.

This blog post is for informational purposes only and does not constitute legal advice.