ADA questions remain over web accessibility cases and the lack of DOJ regulations

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Karla Gilbride kept getting lost while trying to navigate unlabeled buttons and unorganized graphics when searching online for someone to handle her wedding registry and invitations.

Gilbride, who is blind and uses a screen reader, refuses to make even one-time purchases from companies with unnavigable websites. She can’t walk into a store and see products on the shelves, but she can scroll down a page and learn about them if a website is accessible.

“It is something I deal with every day in my life, trying to purchase things online and do my job and get around the internet,” says Gilbride, a staff attorney at Public Justice, a nonprofit legal advocacy organization in Washington, D.C. “I encounter frustrations daily with roadblocks to using the internet, which could be such a gateway to leveling the playing field.”

Disability rights advocates say web accessibility—the practice of designing and coding websites so that people with disabilities can use them—can be accomplished through simple changes, such as changing color contrast and adding video captions.

However, the legal landscape surrounding web accessibility has become more complex.

The Americans with Disabilities Act, signed into law in 1990, requires in Title III that businesses serving as “places of public accommodation” remove barriers to access for people with disabilities.

Under the ADA, places of public accommodation include restaurants, theaters, retail stores and more. The law does not explicitly address the internet or mobile applications, leaving courts around the country to decide how the law applies to commercial websites.

Despite calls for clarity, the Department of Justice, the federal agency responsible for enforcing the ADA, has not provided regulations on the scope of the law in terms of web accessibility.

Related lawsuits have also increased dramatically, with the vast majority filed by a small number of law firms representing a small number of plaintiffs, says Kristina Launey, managing partner of Seyfarth Shaw’s Sacramento, California, office and a member of its ADA Title III Specialty Team.

“We are in a state of no regulation,” Launey says. “No regulations are going to happen anytime soon, and the number of lawsuits year after year has been increasing exponentially, partially as a result of that.”

According to Seyfarth’s ADA Title III News & Insights blog, which tracks web accessibility cases using data from Courthouse News Services, at least 2,258 federal lawsuits were filed in 2018. This is an increase of 177% over 2017, when 814 were filed. Comparatively, only 262 web accessibility lawsuits were filed in federal courts in 2016, and 57 were filed in 2015, the blog also found.

A HISTORY OF SPLIT DECISIONS

Web accessibility was the primary focus of National Federation of the Blind v. Target Corp. in 2016, when the organization sued the retail chain over its website in Northern California. The NFB alleged that Target violated the ADA and California state laws by discriminating against people who were blind and visually impaired in places of public accommodation.

A federal judge ruled that the lawsuit could proceed, holding that the aspects of Target’s online services that were sufficiently integrated with those of its physical stores were covered by the ADA’s nondiscrimination provisions. The case was later settled.

In 2011, National Association of the Deaf v. Netflix Inc., which was filed in federal court in Massachusetts, alleged that the video streaming service violated the ADA by failing to provide closed captioning on most of its “Watch Instantly” programming.

Despite Netflix’s arguments that the ADA applied only to physical places, the judge ruled that the law also covers website-only businesses and allowed the case to proceed.

NAD CEO Howard Rosenblum, who is deaf, says Netflix settled with NAD and agreed to 100% captioning of its video content. NAD then negotiated for 100% captioning on all major video streaming services and reached an agreement with Gogo to caption in-flight movies.

“Prior to our Netflix case, most service providers did not perceive web accessibility as a necessity or legally required,” Rosenblum says.

While some courts have agreed with the rationale in the Netflix case, others found that websites are subject to the ADA only if there is a close nexus between the website and a physical location.

In 2012, a federal court in California held in lawsuits against Netflix and eBay that places of public accommodation must be physical spaces. As a result, the 9th U.S. Circuit Court of Appeals in San Francisco affirmed in two unpublished opinions in 2015 that Netflix’s streaming service and eBay’s web-based business were not subject to the ADA.

A federal court in Florida ruled in the first actual trial over web accessibility in 2017 that the website of supermarket chain Winn-Dixie is a place of public accommodation, since it is “heavily integrated” with physical stores and operates as a “gateway” to those stores.

The court ordered Winn-Dixie to comply with the Web Content Accessibility Guidelines 2.0, a set of guidelines for improving web accessibility that were published by the World Wide Web Consortium in 2008.

The 11th U.S. Circuit Court of Appeals in Atlanta heard the appeal in Juan Carlos Gil v. Winn-Dixie Stores Inc. in October and has not yet issued an opinion.

Gilbride says the Winn-Dixie trial is significant because most decisions involving web accessibility have been on motions to dismiss or summary judgment, including those in the earlier Target and Netflix cases.

In addition to the nexus issue, she says a question that keeps coming up in briefs is “whether businesses need to comply with federal and state law in the absence of regulations from the DOJ, or whether they should wait for the DOJ to give guidance.”

The 9th Circuit answered that question in January in Guillermo Robles v. Domino’s Pizza, rejecting the restaurant chain’s argument that courts should wait for DOJ regulations before they decide cases. The appellate court held that the ADA applies to the company’s website and mobile app, since the law “applies to the services of a place of public accommodation, not services in a place of public accommodation.”

In a footnote, the 9th Circuit said it was not deciding whether the ADA covers websites or apps where the inaccessibility does not prevent access to the physical location’s goods and services.

Domino’s is likely to file a petition for writ of certiorari with the Supreme Court, but had not done so before press deadline.

ASKING FOR GUIDANCE

The DOJ announced plans to propose web accessibility regulations in 2010 but withdrew those plans in December 2017.

“That was consistent with what President [Donald] Trump’s administration was doing with regulations across the board,” says Launey, who defends companies in web accessibility cases at Seyfarth Shaw.

Members of the House of Representatives and Senate sent letters to then-Attorney General Jeff Sessions to encourage the DOJ to address uncertainty in the ADA and the ongoing flood of lawsuits.

The DOJ responded to Rep. Ted Budd, R-N.C., in September, contending that it interpreted the ADA to apply to public accommodations’ websites more than 20 years ago.

“This interpretation is consistent with the ADA’s Title III requirement that the goods, services, privileges or activities provided by places of public accommodation be equally accessible to people with disabilities,” the DOJ said.

The DOJ also stated that in absence of specific web-accessibility regulations, public accommodations can be flexible in how they comply with the ADA’s general nondiscrimination and effective communication requirements.

Lainey Feingold, a disability rights lawyer in Berkeley, California, who has worked on web accessibility cases since 2000, says that means the DOJ never doubted that the ADA applies to websites.

“The ADA, since the beginning, has had language that if you are covered by the ADA, you have to effectively communicate with the public, your members, your patients,” she says. “The only way to effectively communicate information on a website or mobile application is to have that website or mobile app be accessible.”

The ABA House of Delegates weighed in at the 2018 annual meeting, urging courts and government entities to interpret the ADA as applying to technology, goods and services delivered via technology, regardless of whether the entity solely exists virtually or has a nexus to a physical location.

Despite the lack of specific regulations, Launey says her clients are making their websites more accessible in light of the DOJ response and the Domino’s decision.

She adds that many of them delayed making expensive changes in case the DOJ issued a standard other than the WCAG 2.0 AA—which is the standard experts say affords maximum accessibility but is still attainable. WCAG 2.1 AAwas published in June 2018 and includes the same requirements.

Feingold calls the unresolved questions around web accessibility distractions, saying that companies have the tools to make their websites accessible.

“It is not complex as to how to develop an accessibility program,” Feingold says. “As with everything worth doing, it does take expertise and commitment.”

Working on a website can be difficult. Adding new media and updating pages is chore, even though you know your company website needs to evolve and become more accessible to the many users you are trying to reach. Maybe when you first built it, accessibility wasn’t even really discussed. But now you’ve taken a step back, looked at your customer base with a desire to include everyone and you’ve realized just how important it is to make your site accessible. However, the thought of building a robust site that can do all the things you want it to do is overwhelming.

What is Web Accessibility

A practice of designing and coding the website in order to provide complete compatibility in accessing it by people with disabilities. In addition, it is a way to improve search engine optimization only an ADA Compliant Web Designer will help you to make your website Compliant. Is your website compatible? By going through the checklist below, you can get the answer.

Assessing Current Web Pages and Content

  • The website must include a feature like a navigation link at the top of the page. These links have a bypass mechanism such as a “skip navigation” link. This feature directs screen readers to bypass the row of navigation links and start at the web page content. It is beneficial for people who use screen readers to avoid to listen to all the links each time they jump to a new page.
  • All the links should be understandable when taken out of the context. For example, images without alternative text and links without worded as “click here”.
  • All the graphics, maps, images, and other non-text content must provide text alternatives through the alt attribute, a hidden/visible long description.
  • All the documents posted on the website should available in HTML or another accessible text-based format. It is also applicable to other formats like Portable Document Format (PDF).
  • The online forms on the website should be structured so assistive technology can identify, describe and operate the controls and inputs. By doing this, people with disabilities can review and submit the forms.
  • If the website has online forms, the drop-down list should describe the information instead of displaying a response option. For instance, “Your Age” instead of “18-25”.
  • If the website has data charts and tables, they should be structured so that all data cells are associated with column and row identifiers.
  • All the video files on the website must have audio descriptions (if necessary). This is for the convenience of blind people or for having a visual impairment disability.
  • All the video files on the website must have synchronized captions. People with hearing problems or deaf can access these files conveniently.
  • All the audio files on the website should have synchronized captions to provide access to people who are deaf or hard of hearing.
  • All web pages should be designed so that they can be viewed using visitors’ web browser and operating system settings for color and font.

About Website Accessibility Policy and Procedures

  • One must have a written policy on website accessibility.
  • The website accessibility policy must be posted on the website at a location where it can be easily found.
  • The procedure should be developed to ensure that content is not added to the website until it has been made accessible.
  • It should be confirmed that the website manager has checked the code and structure of all new web pages before they are posted.
  • While adding the PDFs to the website, these should be accessible. Also, the text-based versions of the documents should be accessible at the same time as PDF versions.
  • Make sure that the in-house and contractor staff has received the information about the website accessibility policy and procedure to confirm the website accessibility.
  • It should be confirmed that in-house and contractor staff has received appropriate training on how to ensure the accessibility of the website.
  • The website should have a specific written plan if it contains inaccessible content. Also, it should include timeframes in place to make all of the existing web content accessible.
  • A complete plan to improve website accessibility should be posted along with invited suggestions for improvement.
  • The homepage should include easily locatable information that includes contact details like telephone number and email address. This is useful for reporting website accessibility problems and requesting accessibility services with information.
  • A website should have procedures in place to assure a quick response to the visitors with disabilities who have difficulty in accessing information or services available on the website.
  • Feedback from people who use a variety of assistive technologies is helpful in ensuring website accessibility. So make sure to ask disability groups representing people to provide feedback on the accessibility of your website.
  • Testing the website using a product available on the internet is helpful, These tools are of free cost and check the accessibility of a website. They may not identify all accessibility issues and flag issues that are not accessibility problems. However, these are, nonetheless, a helpful way to improve website accessibility.

Checklist of Action Items for Improving the Accessibility of a Website

In addition, while considering the above suggestions, the following checklist initially prepared by the U.S. Department of Health and Human Services for Federal Agencies provides further guidelines on ways to make websites more accessible for persons with disabilities.

This practical advice, as well as another checklist, are available at:

Satisfying all of these items does not necessarily mean that a website complies with ADA, but it will improve the website’s accessibility and decrease the risk of litigation. Again, an Expert or Web Accessibility Consulting & Services provider should be engaged to conduct a comprehensive review of your website.
Nothing brings you closer to reality than actually facing it. This is the premise of my latest attempt to spread awareness about Web Accessibility.
For better understand, here is a link in which a practical example is shown to make the websites’ user experience better by following the guidelines. Also, it tells the issues affecting various users on the internet with solutions.
You can make your website ADA compliant in an easy way by consulting the professionals, who can do this job effortlessly. Also, you can get a quick website audit from To Be ADA Compliant that offers complete web accessibility consulting & services in California, USA.

Resource: https://dev.to/chinchang/an-interactive-and-practical-introduction-to-web-accessibility-22o1