Digital Accessibility Legal Update (Summer 2015)

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This is a post about how the law is helping to make websites, other information and technology more accessible to people with disabilities. The United States Department of Justice has done a lot of work to help people with disabilities. Lawyers at the DOJ have gone to court when websites do not work for disabled users. The DOJ has convinced cities and counties to make their digital services accessible.  DOJ has told the court that college websites need to be captioned for deaf site visitors. Other lawyers have convinced schools that a blind worker deserves her day in court to argue that call center technology should be accessible. Other recent cases are about bank websites that everyone can use and the rights of readers to read on line on the Scribd website.

red tool box full of tools

This post is part of an occasional series about recent legal developments impacting technology and information access for people with disabilities. This post covers activity from March 12, 2015 through August 10, 2015. You can find earlier Updates in the Legal Updates Category of this website. Follow the Law Office of Lainey Feingold on Twitter for legal updates related to information and technology access, particularly for people who are blind and visually impaired. If you would like to be added to my email list, please visit the Contact page.

The series is illustrated by a toolbox — because law has proven an effective tool to improve the accessibility and usability of digital content, print information and technology for everyone. There are many ways to use the law, reflected by the many tools in the toolbox and by the updates below.

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U.S. Department of Justice Continues Support for Digital Accessibility

Everyone’s waiting for the Department of Justice (DOJ) to issue regulations about web accessibility. Regulations would be useful to raise the profile and highlight the importance of digital access. But the ADA already covers websites and mobile applications. Nobody should be waiting for regulations. (I said the same thing a year ago.) The Justice Department continues to advance the cause of full inclusion for people with disabilities in the digital space.

The most recent word from the DOJ is that the Notice of Proposed Rule Making (NPRM) covering websites of public accommodations (private entities serving the public) won’t be issued until April 2016. (The Spring 2015 Regulatory Agenda has this information.) The proposed regulations for state and local government should have been out by now. Regulations or not, the recent developments listed here emphasize DOJ’s position that the ADA already requires accessible digital content.

DOJ settles with edX and requires accessible web, mobile and platform

In April 2015 the Justice Department announced a settlement with edX, one of the country’s largest providers of massive open online courses (MOOCs). The agreement requires that edX websites, mobile applications, and digital platforms be accessible and usable by people with disabilities. Digital content must meet the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA. Read the DOJ edX press release. Read the edX settlement agreement with the Department of Justice.

DOJ Weighs in on Suits Against Harvard and MIT for Failure to Caption Video

On June 26, 2015 the United States Department of Justice filed Statements of Interest in two cases pending in federal court. A Statement of Interest is a way for a government agency to give a court its opinion on an issue within the agency’s area of expertise. The cases were filed by the National Association of the Deaf (NAD) against Harvard and the Massachusetts Institute of Technology (MIT) for failure to caption videos. The DOJ firmly weighed in on the side of the plaintiff NAD. The ADA already covers websites, the DOJ said, and the court should not wait until federal regulations are final. This paragraph summarizes the Department’s position in both cases:

In the ANPRM, the Department reaffirmed its longstanding position that the ADA applies to websites of public accommodations, and reiterated, consistent with the preamble to the 1991 regulations, that the ADA regulations should be interpreted to keep pace with developing technologies.. . . (“The Department has also repeatedly affirmed the application of title III to Web sites of public accommodations.”). The Department recognized, however, that in light of inconsistent court decisions on website-related obligations and differing technical standards for determining web accessibility, further guidance was warranted.” DOJ court filing in the Harvard captioning case at pages 4-5

US Department of Justice Requires Digital Access from State and Local Governments

Through its Project Civic Access, the United States Department of Justice continues to tell state and local governments that the ADA requires accessible websites. Every recent settlement includes obligations to make websites (and mobile applications when available) accessible. Web accessibility coordinators are required and other details are specified. Here’s a list of some of the recent settlements the DOJ has reached with cities and counties across the country. These settlements cover many aspects of the government’s operations. You can find specific language about digital content by searching for “WEB-BASED SERVICES AND PROGRAMS” in the documents.

More settlements between the DOJ and state and local governments can be found on the DOJ’s ADA website.

Federal Court Says ADA applies to Scribd (Web-Only Reading Service)

One of the best court decisions i’ve read in a long time was issued On March 19, 2015 in the National Federation of the Blind’s case against Scribd. Scribd is a virtual library – sometimes referred to as the Netflix of books. But the books and the site aren’t accessible to blind readers because Scribd didn’t develop its site to established accessiblity standards. NFB sued and Scribd asked the judge to throw the case out of court. The judge said no. He ruled that Scribd was covered by the Americans with Disabilities Act, and noted that the Department of Justice has recognized ADA’s coverage of websites since 1996:

Importantly, in other contexts, the DOJ has taken the position that the ADA applies to the Internet and web-based goods and service providers. See, e.g., Letter from Deval L.Patrick, Assistant Att’y Gen., to Senator Tom Harkin (Sept. 9, 1996) (“Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet.”)Court opinion in NFB v. Scribd

Scribd tried to appeal the court order but the court said it couldn’t appeal yet. The case is now back in court. Read the District Court opinion in NFB v. Scribd. Disability Rights Advocates and the Baltimore firm of Brown, Goldstein & Levy are representing the plaintiffs.

Federal Appeals Court Says Blind Worker’s Lawsuit can Move Forward

The need for accessible workplace software is a critical issue in ensuring that blind applicants and employees can become and remain employed. In April 2011 the National Federation of the Blind filed a lawsuit on behalf of Yasmin Reyazuddin who was denied transfer to an upgraded call center because the new software was not designed to be accessible for blind employees. The case, Reyazuddin v. Montgomery County, was thrown out of court on the grounds that upgrading the software would be too expensive. But good news! In June, 2015, the Court of Appeals for the Fourth Circuit ruled that the case should not have been thrown out. The Court said it was up to a jury to decide if the county should have made the call center software accessible so Ms. Reyazuddin could do her job. And the court said the jury had to consider other factors besides cost in determining if the county violated the law. The case will now go back to the District Court. Brown, Goldstein & Levy are representing the plaintiff in the case. Stay tuned for further developments.

Report says California State Websites Must be Accessible

In June, 2015 the California State Auditor issued a report analyzing four state agency websites for accessibility. The four agencies reviewed were the California Community Colleges (Community Colleges), California Department of Human Resources (CalHR), Covered California, and State of California Franchise Tax Board (Franchise Tax Board. The report “found violations of applicable accessibility standards on each department’s website.” Read the California Auditor’s 85 page report.

Bank of America Continues Commitment to Accessibility

In 2000 Bank of America was the first institution in the United States to sign a settlement agreement stating it would develop its website in accordance with the Web Content Accessibility Guidelines (at that time WCAG 1.0). Ever since then B of A has been at the forefront of the financial industry’s accessibility efforts. The Bank reaffirmed that leadership in June, 2015 when it announced accessibility enhancements to its travel reward website. The site is used by the bank’s credit card customers to redeem reward points for travel. The case was resolved in Structured Negotiations with Linda Dardarian, of Oakland California’s Goldstein, Borgen, Dardarian & Ho and The Law Office of Lainey Feingold representing Ashley Cwikla, a blind Bank of America customer.

Students Need Access to Tech and Digital Content

The law continues to be a tool to make sure education is accessible for people with disabilities. In a disappointing development, a student in Chicago was forced to sue a local community college when he was asked to drop out of an algebra class because he was blind. Read the press article about the blind student’s Chicago case

In another development the National Federation of the Blind (NFB) announced in June, 2015 that it had settled its digital access claim against a New Jersey Community College. The case will ensure that the school’s technology, including course materials, websites, and other tech will be available to all students. Read the press release about the NFB community college settlement.

Netflix Begins offering Video Description

After significant community pressure and back-channel legal advocacy, Netflix announced in April, 2015 that it had begun to offer video description of some of its streaming content. Read the Netflix video description announcement. Video description is an important aspect of online access. It is audio description of key visual elements, scenes and actions inserted into natural pauses in video dialogue and makes video accessible for blind viewers. Want to learn more? Here’s the Federal Communication Commissions page about video description on television. You can watch described YouTube videos (and find out about describing those videos) on the YouDescribe website.

Want to keep current about digital accessiblity legal developments? Follow the Law Office of Lainey Feingold on Twitter