Digital Accessibility Legal Update (December 2015)

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This is a post about how the law is helping make websites and mobile applications more accessible to disabled people. People are also using the law to gain access to other information and technology. The United States Department of Justice does a lot of work to help disabled people access digital content. Unfortunately, the DOJ has also delayed regulations. These rules would speed up compliance with existing law on digital access. Private advocates and organizations also work to increase access. A blind mother settled her case with a school district.  She needed access to the school’s website to help her children with math homework. As a result of another settlement, an online service will make books and magazines accessible to everyone.  The law also brought talking labels to a national pharmacy. And a federal website will now be available to blind federal contractors.  

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 digital accessibility legal update covers activity from August 11, 2015 through December 10, 2015. This update includes Department of Justice activity, the settlement of cases against Scribd and the General Services Administration, Structured Negotiation with Humana, an important new voting rights case, and other developments.

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. If you would like to be added to my email list, please visit the Contact page.

The series is illustrated by a toolbox. The 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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Department of Justice Delays Regulations *AND* Champions Accessibility

Since the last update, the United States Department of Justice (DOJ) has continued its enforcement work to ensure an accessible digital landscape. My Summer 2015 update included links to the department’s involvement in lawsuits against Harvard and MIT for failing to caption videos and its settlement with edX covering the educational giant’s websites, mobile applications and online learning platforms. DOJ enforcement activity since the last update includes

  • A settlement with the Carnival Corporation requiring that the websites and mobile apps for the company’s cruise ship lines meet the Web Content Accessibility Guidelines (WCAG0) 2.0 Level AA standards. The DOJ/Carnival settlement agreement covers Carnival Cruise Line, Princess Cruises, and the Holland America Line.
  • A settlement with McLennan County Texas covering the agency’s website and mobile application. As with all of the DOJ’s settlements reached through Project Civic Access, the settlement requires that the agency’s website satisfy WCAG 2.0 AA standards. Other requirements include appointment of a web accessibility coordinator and hiring a web accessibility consultant. Obligations concerning digital access are contained in sections 41 through 43 of the settlement.

While the Department of Justice continues to tell courts, private parties and government agencies that the Americans with Disabilities Act covers websites and mobile applications, it recently announced another delay in issuing ADA digital access regulations. I detailed that delay in a two-part series in BeyondChron, an online alternative news source. Part one of the series is titled Federal Disability Regulations Face Historic Delays. You can also read Part two, titled Justice Delayed in Federal Disability Regulations.

Regulations for private sector websites are now not expected until 2018. Public sector web regulations may happen as soon as 2016, but since the DOJ has announced a new delay with each deadline for the past several years, I am not optimistic. No one should be waiting for regulations. The ADA (and other laws) already require web and mobile accessibility.

The U.S. Access Board Delays Section 508 regulations

The United States Access Board is responsible for regulations under Section 508 governing federal procurement of accessible technology. Back in July 2006 the Access Board started “refreshing” those regulations by establishing the Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) to review the regulations. The committee issued its report in 2008, the most recent Notice of Proposed Rule Making was issued on February 27, 2015, and the public comment period closed this past May. In late November the agency announced that the final rule would not be coming out until October 2016. Read the Access Board’s Fall 2015 Regulatory Agenda that includes the 2016 date.

If you want to learn more about Section 508 and the effort to make the regulations current, visit the Access Board’s Section 508 Refresh Portal. You will find the full history with links to documents. You can also read the Access Board Statement of Regulatory Priorities, Fall 2015 that the agency filed with its update about Section 508.

It has been more than seven years since the Access Board began the “refresh” process, and there are still no updated regulations. I don’t know why the delay has been so significant, but it is clear to me that the process is stale.

Why Regulations Matter

Even without current regulations, the ADA and Section 508 already require accessibility on the issues covered by the stalled disability rights regulations. So why does excessive delay matter? Here are just some of the reasons as I first detailed them in my BeyondChron articles.

  • The lack of current regulations gives businesses, schools and government entities large and small an excuse to do nothing. “We don’t know what to do,” they argue to courts. “We need federal guidance,” they tell the media. These arguments are not valid with a sweeping anti-discrimination law and where the path to accessibility is clear. But the arguments are made nonetheless.
  • The lack of current regulations makes it harder for corporate, government, and higher education champions to do the right thing. It makes it more difficult for these internal advocates to secure the funding they need to build accessibility into business processes and purchase accessible technology and equipment.
  • The absence of regulations is unfair to those entities that are moving forward with accessibility efforts in the absence of regulations. My colleagues and I have negotiated digital access agreements with Major League Baseball, Bank of America, CVS and many other large institutions. These companies have worked with the blind community on access; their competitors should too, and regulations would help.
  • Especially in the area of technology, outdated regulations are unfair to technology consumers, purchasers and producers. By the time any of the regulations discussed here do get issued (assuming they ever do) they may well be immediately out-of-date.
  • The lack of regulations puts added burdens on disabled advocates and their organizations to achieve access. Large movie chains have captioned videos. But a friend in Kansas told me last week that the largest chain in his state has refused to show captioned films — something the ADA already requires, and that regulations would make clear.

Fortunately, advocates, and champions inside corporations and government agencies, are not waiting for federal regulations, as the updates below demonstrate. The DOJ enforcement activities make it clear: no one should be waiting for regulations.

New Voting Rights Case in Ohio

As voting moves on line, accessibility must be built in to every part of the voting process. A lawsuit brought by three blind voters in Ohio has that goal. The suit was filed by the National Federation of the Blind and Disability Rights Ohio in early December, 2015 against the Ohio Secretary of State. The lawsuit alleges that blind voters are not able to vote absentee without sighted assistance, and that the state’s voting website is not accessible. The case was brought under the Americans with Disabilities Act.

Settlement of SCRIBD Lawsuit

In the Summer 2015 Legal Update I wrote about an important court order in the National Federation of the Blind’s case against Scribd. For a nominal monthly fee, Scribd provides readers access to millions of books and magazines. The court order refused to throw the case out of court, passionately describing why the ADA case could move forward.

The case has now settled, and Scribd has agreed to make content on both its website and mobile apps accessible. The agreement uses the Web Content Accessibility Guidelines 2.0 Level AA as the web accessibility standard, and the BBC Mobile Accessibility Standards and Guidelines as the mobile standard. Disability Rights Advocates and Brown Goldstein and Levy represented the plaintiffs in the case.

GSA Settles Lawsuit about Inaccessible Website

In November, 2015 the American Council of the Blind announced it had settled its lawsuit against the General Services Administration for the agency’s failure to maintain an accessible website for federal contractors. Read the press release announcing the GSA web settlement. The ACB was represented in the case by the Washington Lawyers Committee for Civil Rights and Urban affairs, and a private D.C. lawfirm, Sutherland Asbill & Brennan LLP. The case involved a GSA operated website known as SAM (System for Award Management).

Seattle Public Schools Settles with Blind Mom

In September, 2015, the Seattle public school system announced it had settled a lawsuit with a blind parent who could not access the district’s website to help her children with their math homework. In settling the case brought by parent Noel Nightingale and the National Federation of the Blind, the K-12 District agreed to hire a web accessibility coordinator and make its website and other online resources more accessible to blind students, faculty members and parents. Baltimore civil rights firm Brown, Goldstein and Levy represented the plaintiffs.

Other Private Lawsuits Seek Web Accessibility

A spate of lawsuits have recently been filed about allegedly inaccessible websites. Defendants in these suits include eHarmony, the NBA and Red Roof Inns. None of the cases have yet resulted in public settlements or court orders. While the cases tend to generate media attention at the filing, little is reported about developments or case resolution. The suit against eHarmony was covered in the press in August, 2015. Court records show it was voluntarily dismissed less than four months later. Read the Newsweek article about the eHarmony web case. Read articles about the web case against Red Roof Inns and the web case against the NBA. Both of these cases are pending in federal court in the Western District of Pennsylvania.

Humana Announces Availability of Accessible Prescription Labels

Information accessibility is not just about websites and mobile applications. Since the last update, advocates have continued to push the health care and pharmacy industries to make prescription medication labels accessible to people who cannot read a standard print label. Recently, the American Council of the Blind announced it had worked in Structured Negotiation with Humana on this important health and safety issue. Humana is now offering talking prescription labels, as well as braille and large print labels, through the En-Vision America ScripAbility system.

Humana joins CVS, Caremark, Walmart and Walgreens who have worked with the ACB and blind customers in the alternative dispute resolution process to bring accessible labels to people who are blind or otherwise print-disabled. Agreements with other pharmacy retailers are in the works. Linda Dardarian of the Oakland civil rights firm Goldstein, Borgen, Dardarian and Ho and the Law Office of Lainey Feingold represented ACB and blind Humana customers in the negotiation.

In addition to providing accessible labels, Humana has also strengthened its program to provide health care information in alternative formats. The Humana website has been designed and developed to meet WCAG 2.0 AA standards, and paper information is offered in braille, large print, audio and electronic formats.

Airline Digital Access Issues

As of December 12, 2015, the core functions of airline websites must satisfy the Web Content Accessibility Guidelines 2.0 Level AA. Read the federal airline website rule.

Airline websites not accessible? Complaints about airline website accessibility can be made through the Department of Transportation’s toll-free hotline for disability issues at: 800-778-4838. The phone is answered from 9:00 a.m. through 5:00 p.m. Eastern and messages can be left after hours. Visit the DOT disability hotline webpage. Complaints can also be filed using the DOT online air travel complaint and comment form.

Although implementation of the airline web regulations is reason to celebrate, the DOT has not gone far enough to ensure that disabled air travelers have full access to digital services and content. In 2013 I wrote about the failure of the DOT to include requirements for mobile access in its regulations, and about the inexcusable delay given the airline industry to make kiosks accessible. Two years later, still no mobile regs, and the deadline for accessible kiosks is still far in the future. Read my 2013 post about web, mobile and kiosk regulations in the airline industry. The National Federation of the Blind has filed a lawsuit against the DOT because of the failure to implement timely regulations about kiosk accessibility. The case is set for hearing in federal court in March, 2016.

On December 7, 2015, the Department of Transportation announced it was considering a negotiated rule making process that would cover several issues, including the accessibility of in-flight entertainment. Read the DOT announcement in the Federal Register.

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