ADA & the Internet: 2020 Legal Update – Webinar Q&A

Written by: Kim Phillips

This post shares Q&A from our March 11, 2020 webinar with Seyfarth Shaw LLP Partner Kristina Launey and Level Access CEO Tim Springer. You can access the webinar recording, slides, and transcript on the ADA & the Internet: 2020 Legal Update webinar page.

Are there any web accessibility cases where the defendant only has a website and not a physical store?
There are a variety of web accessibility cases where the defendant only has a website and does not have a physical store. The decisions and governing law approach on those cases vary widely based on the jurisdiction that they are brought in. As such, no standard applies nationally. In general, though, if you are a web only business it is likely – at this stage – that some digital accessibility laws may apply to you in the view of a court of competent jurisdiction and this is a matter you should consider.

If plaintiff’s attorneys are using spiders on the homepage, is there any utility to cleaning up the front page as a super-priority (while still working to make the entire site accessible)?
Our general view is “yes” but given that it’s trivial to spider the entire site we’d optimize for the overall site compliance levels and then focus in on individual pages based on traffic

What about state and local government?
State and Local governments are covered under Title II of the ADA. That aspect of the statute has a different method of application and, as such, different rules apply. We have, however, seen a variety of state of local government agencies being pursued under the ADA and state laws governing accessibility.

If we have an online vendor delivering part of our web site, can we ask them to certify they are WCAG 2.0 AA compliant as a defense, or do we have to do the testing ourselves?
You have various options as to what to do here, but you should certainly ask for evidence so that you are comfortable from the vendor that the website is WCAG 2.1 or 2.0 AA conforming, If they can’t or don’t provide that to your comfort level, you may want to have your own vendor test the content.

Do online communities “count” as a physical space under ADA Title III?
That’s a source of a great degree of debate. As with the question relating to web only business it’s ultimately likely to depend on the jurisdiction and the facts of the specific situation. Unfortunately, there is not currently broad guidance on the issue.

For Winn-Dixie, what qualified as 3rd party content?
If memory serves, in the context of that lawsuit it was content provided on the relevant site that wasn’t directly owned by Winn-Dixie. More generally it’s often site content and functionality provided by a third party but integrated into the core function of the site. Chat, maps, syndicated content and the like often fall into that category.

If a website has feature parity with it’s mobile device counterpart, are the courts saying they both need to accessible?
There’s no general theory on this – it’s fact based and depends on the particulars of a given situation. From the Level Access perspective we could find a path to the website being an alternative but it would have to meet the utility and availability of the mobile app. In the context of the mobile app that is likely to be a high bar given the relative simplicity of many mobile apps in comparison to the comparable websites.

What do you mean by “Don’t rely on overlays”?
Overlays or widgets are products that are added in via a JavaScript code to a website. The marketing of such products often promises to achieve a high degree of WCAG compliance with little to no effort. Our considered view is that such products do not, in fact or spirit, meet the requirements of the WCAG nor do they meet the legal requirements of the ADA. That’s a well informed view based on 20+ years of experience in the space and a detailed technical understanding of the platforms involved. Put another way – overlays and widgets – quick, cheap fixes for the complicated problem of digital accessibility – seem to good to be true. Our view is: that’s because they are.

I’ve begun seeing more “widget” based accessibility tools being used on some sites. Do you all have an opinion on these kinds of tools from a legal standpoint?
We do. As noted elsewhere, overlays or widgets are products that are added in via a JavaScript code to a website. They general display a little icon that provides the application of some accessibility enhancements. The marketing of such products often promises to achieve a high degree of WCAG compliance with little to no effort. Our considered view is that such products do not, in fact or spirit, meet the requirements of the WCAG nor do they meet the legal requirements of the ADA. That’s a well informed view based on 20+ years of experience in the space and a detailed technical understanding of the platforms involved.

So why do people use them?
Basically they are cheap and quick. Cheap, meaning low cost, and quick, meaning they can be deployed without significant effort. Many organizations prefer to be seen doing something w/r/t digital accessibility even if they know it won’t address the fundamental issue. Our view is that this money would be better spent addressing the substantive issues versus chasing some ineffectual solution. Further, there is zero evidence that deploying such solutions in any way changes your risk for lawsuits. In short: they’re cheap, don’t work, but the attitude is “it’s better than nothing.” Our view is that’s throwing bad money after bad.

What happens in cases where an automated tool is flagging false positives or false negatives? Do they typically manually test the sites in addition to automated checks before filing?
In our experience it varies based on the plaintiff firm but, generally, no, they don’t. In our view that opens the opportunity, however, to respond forcefully to such allegations with hard facts. That doesn’t mean the issue will necessarily go away but it does communicate the seriousness of your intent and actual progress to the other party.

Have there been university website cases other than the Harvard/MIT mentioned that we should be aware of?
Mostly OCR cases under the prior Administration’s DOJ, but yes, there have been quite a few website accessibility actions against universities over the years.

If Domino’s fixes their website, does the lawsuit go away?
Unlikely. The lawsuit is likely to be based on the facts at the time of the suit versus that which has subsequently happened. That noted this clearly impacts the desire and ability to settle the suit.

Third-party content is significant for higher education that frequently uses publisher content in courses. Would the publisher be separately liable, or would the university be the primary focus.
That would make real motivation for universities to avoid using publisher content Our general experience is that the university is the primary focus as the university is the one either providing the content or requiring students to use the content. That doesn’t preclude several liability for the publisher but doesn’t inherently require it.

What about the “nexus” of accessibility and copyright when trying to modify third party content to be accessible when it is not?
Ultimately that’s a matter of contract law between the licensee and licensor of the content.

Do states with more lawsuits make it easier to file a lawsuit? Or is it a matter of the states possibly having larger populations?
Principally this is an issue of the governing law of the state being more conducive to such lawsuits.

Do you see any cases yet relating to document accessibility?
Some, although they are still limited in number and nature.

How are YouTube and other video platforms are responsible for content their users upload without captions?
That’s a complicated question. YouTube would take the stance the individual providers are responsible for the captioning of their content. Accordingly they have provided many and robust solutions to caption content. Currently there isn’t much regulatory or court guidance on the issue.