Spring 2016 Digital Accessibility Legal Update

Posted on Updated on July 28, 2016

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This is a post about how the law is helping make websites and mobile applications more accessible to disabled people. The United States Department of Justice does a lot of work to help disabled people access digital content. But the DOJ has also delayed regulations.  Private advocates work to increase access.  Lawsuits try to make sure blind people can vote without help.  The American Council of the Blind uses Structured Negotiation to bring talking labels to pharmacies.   A negotiation with Kaiser improved access for blind members.

red tool box full of tools

This post includes recent legal developments about digital accessibility between December 11, 2015 and May 7, 2016. It supplements presentations given by Lainey Feingold this Spring at the Funka Nu Accessibility Days Conference in Stockholm, the John Slatin AccessU in Austin, and at the 31st annual International Technology and Persons with Disabilities Conference sponsored by California State University at Northridge, popularly known as CSUN (with Linda Dardarian).

This update is part of an occasional series about recent legal developments impacting technology and information access for people with disabilities. Access to the digital world is a civil right, and there is a lot happening in the legal space. Previous updates include the December 2015 legal update and the Summer 2015 legal update.

You can find all the earlier Updates in the Legal Updates Category of this website. If you would like to be added to my email list to receive these updates in your in-box, please visit the Contact page. You can Follow the Law Office of Lainey Feingold on Twitter for real-time legal updates related to information and technology access.

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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.

In this post you will find information about the following:

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

DOJ Enforcement Activity

It is now easier than ever to stay up-to-date about the United States Department of Justice’s work on digital accessibility. In April, 2016, the Department launched the DOJ Accessible Technology Page. Under the “Enforcement” tab you can find links to all the Department’s ADA enforcement efforts that have “helped to ensure that people with disabilities can access Web sites, electronic book readers, online courses, and point-of-sale devices.”

The Enforcement tab also links to the Department’s Project Civic Access Page. There you can find links to all the settlement agreements that the Department of Justice has negotiated with state and local government agencies requiring digital accessibility.

In addition to what is listed on the new accessible technology portal, in February, 2016, the Department settled a case with Greyhound with yet another reference to web accessibility requirements under the Americans with Disabilities Act:

For purposes of this Decree, websites and documents will be considered “accessible” if they comply with the Level A and Level AA Success Criteria and Conformance Requirements of the Web Content Accessibility Guidelines 2.0 (Dec. 11, 2008) (“WCAG 2.0 Level AA”), published by the World Wide Web Consortium (“W3C”), Web Accessibility Initiative (“WAI”), available at www.w3.org/TR/WCAG/. “Websites,” as used herein, includes: (i) all web pages, web applications, resources, and services within the website domain, its subdomains, and related domains; and (ii) all of the information, resources, files, databases, images, graphics, text, audio, video, multimedia, services, code, and any other communications sent by or retrieved from the website to members of the public accessing it. DOJ Greyhound Settlement, footnote 1

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Federal Regulations

In contrast to the DOJ’s committed enforcement work, news about web regulations remains dismal. As reported in the last update, regulations under the ADA about websites have been subject to interminable delay. In late 2015, 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 not expected until 2018. But advocates had hoped for public sector regs sooner. Not to be. On April 29, 2016, the Department of Justice posted a Statement Regarding Rulemaking on Accessibility of Web Information and Services of State and Local Government Entities. It could have been titled “We’re Going Back to Square One.”

The Department explained that it had withdrawn the Advanced Notice of Proposed Rulemaking (ANPRM) that has been pending for six (6!!) years, and was issuing a supplemental one (SANPRM). [In contrast, the European Commission announced on May 3, 2016 a new directive requiring public sector websites and mobile apps to be accessible. Read the EU accessibility press release.]

The Supplemental Advanced Noticed of Proposed Rulemaking (SANPRM) was officially published on May 9. It includes 123 questions posed by the DOJ about the costs and benefits of accessibility, and the Department’s thoughts about what regulations would look like. The public has 90 days (until August 8, 2016) to comment on the proposal and answer the questions. You can read the proposed public sector ADA web rule here.

It is disappointing that the federal government has taken a giant step backward in efforts to adopt public sector web accessibility regulations. But the lack of formal regulations does not change the fact that the ADA already requires state and local government agencies to make their digital content and properties accessible. The DOJ’s enforcement activities are crystal clear that ADA requires accessibility for websites, mobile applications and documents for both public and private sector organizations. Anyone waiting for ADA web regulations is making a mistake.

As for the other long awaited federal regulations — those affecting Section 508 (federal procurement) — the wait continues. Back in July 2006 the United States Access Board started “refreshing” those regulations by establishing an advisory committee to review current regulations and propose changes. The committee issued its report in 2008. Now eight years later, still no updated regulations.

Since establishing the advisory committee, the Board has issued two Advanced Notices and one Notice of Proposed Rule Making for the 508 update (referred to as the “508 Refresh”), most recently on February 27, 2015. But the Access Board’s Fall 2015 Regulatory Agenda predicts that the final rule will not be published until October of this year. Will it happen one month before the election? I’m not betting on it. But I know this: With more than ten years to refresh, it is clear the process is stale.

Visit the Access Board’s Section 508 information page.

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Advocacy by Private Parties

Right to Health Care Information

Accessibility for health care documents, websites, software and other technology is fundamental in the digital age. Privacy, confidentiality, and proper treatment depends on it. Advocates continue to push for accessibility in this arena.

  • The nation’s pharmacies continue to roll-out talking prescription labels and other accessible prescription information, thanks to advocacy efforts by the American Council of the Blind and other advocates and organizations. The Talking Prescription Label Spring 2016 Update on this website details how Structured Negotiation has brought talking labels to the nation’s pharmacies. The most recent pharmacy to get on board is Rite Aid. The company announced in February, 2016 that it had begun offering two types of talking labels — the Talking Pill Reminder and Envision America’s ScripTalk. Read the Rite Aid accessible prescription press release.
  • In February, 2016 a lawsuit was filed in federal court in Massachusetts against the U.S. Department of Health and Human Services for the agency’s failure to provide accessible digital and print information to Medicare and Medicaid recipients. Read the press release about the HHS lawsuit.
  • In February, 2016 Kaiser Permanente announced “Sweeping Plans to Improve Accessibility for Individuals with Vision Disabilities,” as a result of Structured Negotiation with the California Council of the Blind and three blind Kaiser patients. The claimants were represented by Linda Dardarian of the Oakland civil rights firm Goldstein, Borgen, Dardarian & Ho and by the Berkeley-based nonprofit Disability Rights Advocates. Read the Kaiser accessibility press release. The settlement agreement and related documents are linked from this page. Dardarian and DRA are also monitoring a comprehensive settlement with Sutter Health addressing a host of disability-related issues, including access to digital and print information. Read about the Sutter settlement. Read the Sutter accessibility press release.
  • The Law Office of Lainey Feingold, along with Linda Dardarian, continues to monitor the settlement agreement between Humana, the American Council of the Blind, and three Humana members. The agreement, reached in Structured Negotiation without a lawsuit, includes an obligation to provide talking prescription labels and an obligation to provide health plan documents in accessible format. Humana has assumed a leadership role in providing accessible information to its members. Read the Humana accessibility press release.
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Right to Financial Information

The need for financial privacy mandates digital accessibility. In 2000 Bank of America became the first financial institution in the United States to agree to make its online banking platform accessible. The bank continues its leadership role. On May 4, 2016, it announced a comprehensive initiative to improve the accessibility of its mortgage information for blind borrowers. The bank continues to use the Web Content Accessibility Guidelines (WCAG) 2.0 AA as its accessibility standard for web, mobile and electronic documents.

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Right to Work

Digital accessibility is crucial in the employment context. People cannot do their work if job-related software is not accessible. People cannot apply for jobs if e-recruiting software or job applications are designed without accessibility in mind. These issues continue to crop up in the legal arena.

  • In late February, 2016, a jury in Maryland did the right thing when it decided that Montgomery County, Maryland violated federal law when it refused to modify call-center software so Yasmin Reyazuddin could continue her work as an information specialist. This has been a hard fought legal battle, with the county fighting all the way. Congratulations to Ms. Reyazuddin, the National Federation of the Blind, and their lawyers: Joe Espo and Dan Goldstein of Brown Goldstein & Levy in Baltimore and Tim Elder of the TRE Law Practice in California.

    Previous updates included reports about lawsuits filed against the Marriott hotel chain for failing to provide blind employees with accessible software. Both cases have now settled; the terms remain confidential.

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    Right to Learn

    There was good news in the cases against Harvard and MIT brought by the National Association of the Deaf (NAD) about the failure to caption educational and course-related videos. The schools tried to get the cases thrown out of court, but in early February, 2016, Federal Magistrate Judge Katherine Robertson said no. She made recommendations refusing to dismiss the cases or put them on hold. The universities did not accept the recommendations and they have been appealed to a federal judge.

    The magistrate recommendations found that the Harvard and MIT websites are covered by the Americans with Disabilities Act (ADA). She also rejected the universities’ arguments that the court dismiss or stay the cases (put them on hold) while DOJ works on its proposed rules for website accessibility. The schools will have a chance to argue later in the case that even though their websites are covered by the ADA, they have a defense to the claims. The Department of Justice has weighed in on the plaintiffs’ side of the case. In addition to NAD, the Disability Rights Education and Defense Fund (DREDF), the Civil Rights Education and Enforcement Center (CREEC), and the Disability Law Center in Massachusetts are representing the plaintiffs.

  • In April 2016 a class action lawsuit was filed in federal court against BarBri, the nation’s largest Bar exam prep course. The suit was brought by blind law students about BarBri’s failure to make its course materials and programs accessible. Among aspects of the program that the plaintiffs are suing about are inaccessible electronic books, practice tests, and feedback for essays. The Washington Lawyer’s Committee and the Texas Civil Rights Project are representing the plaintiffs. Read the press release about the Bar Exam prep company lawsuit.
  • The Department of Education is also involved in increasing access to digital educational materials. In June, 2015 the Department announced a settlement with the University of Phoenix about its online learning platform. The agreement requires accessibility of both function and content, using the Web Content Accessibility Guidelines (WCAG) Read the University of Phoenix accessibility settlement. Back to top

    Right to Read

    In March, 2016, the National Federation of the Blind and Amazon announced they would be “working together to increase selection, enhance accessibility, and improve reading experiences for blind students, including those who have low vision or who are deaf-blind.” According to the press release, “Amazon and the National Federation of the Blind will collaborate on improvements to Amazon’s education content, platforms, and applications, and will meet on an ongoing basis to review progress and exchange ideas and feedback. Initial results of this collaboration are expected this year and beyond.” Read the NFB/Amazon announcement.

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    Right to Entertainment

    Good news for blind movie lovers. On April 14, 2016, advocates announced a settlement with Netflix under which the movie giant would provide audio description with movies and videos offered through the Netflix video streaming and DVD rental subscriptions. The agreement was negotiated by Disability Rights Advocates on behalf of the American Council of the Blind and its Massachusetts affiliate.

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    Right to Government Services

    • On March 14, 2016, New York City Mayor Bill DeBlasio signed a law requiring city websites to adopt accessibility standards. Read a news article about the Mayor’s action.
    • On February 11, 2016, deaf residents and the National Association of the Deaf (NAD) filed suit in Arizona federal court seeking direct access to 9-1-1 services through text. Without text access to 9-1-1 services, deaf residents or people with speech disabilities are at greater risk than non-disabled citizens in accessing reliable, time-sensitive, and critical life-saving services. Back to top

      Right to Restaurant Information

      On January 6, 2016, the Denny’s restaurant chain announced its digital accessibility initiative. The company agreed to upgrade its website and mobile application and use the Web Content Accessibility Guidelines 2.0, Level AA as its access standard. The initiative was the result of Structured Negotiation on behalf of a blind Denny’s customer and the American Council of the Blind. Lainey Feingold and Linda Dardarian represented the claimants. No lawsuit was filed or needed.

      In late March a national class action lawsuit was filed against the Sweetgreens restaurant chain by blind customers because online ordering is not accessible.  The lawsuit was filed by the Washington Lawyers Committee for Civil Rights and Urban Affairs on behalf of Sweetgreens customers Tajuan Farmer and Mika Pyyhkala.  

      Right to Transportation Information

      In March, 2016 the Metropolitan Transit Authority of Harris County (Houston METRO) announced the agency’s digital accessibility initiative. This initiative was the result of Structured Negotiation between the transit agency and two of its blind riders. The blind riders were represented by Christopher McGreal of Disability Rights Texas, assisted by the Law Office of Lainey Feingold. No lawsuit was filed or needed.

      In adopting WCAG 2.0 AA as its accessibility standard for both web and mobile, Houston Metro assumed a leadership role in guaranteeing that all members of the riding public have access to important and timely transit information.

      Right to Vote

      Fitting for an election year, disabled voters are advocating for their right to vote privately and confidentially. The legal activity in the election space includes the following. For a broader take on disability issues during this election cycle, follow #CripTheVote on social media.

      • In December, 2015, the California Council of the Blind and others filed a lawsuit against San Mateo County, California for having an inaccessible absentee voting program. The San Francisco firm of Rosen, Bien, Galvan and Grunfield are representing the plaintiffs.
      • In February, 2016, the Fourth Circuit Court of Appeals upheld a lower court ruling requiring the state of Maryland to make an accessible online ballot-marking tool available to blind voters who wished to vote by absentee ballot. Having only paper absentee ballots violated the Americans with Disabilities Act. The lawsuit was filed by the National Federation of the Blind, represented by the Baltimore firm of Brown, Goldstein & Levy. Back to top

        Best Practices in digital accessibility legal settlements

        The settlement agreements detailed in this update contain common elements, whether reached through United States Department of Justice investigations, collaborative Structured Negotiation, or filed court cases. Taken together, these agreements establish best practices for both settlement agreements, and for internal champions seeking to ensure that accessibility becomes part of their organization’s DNA. While not every agreement includes each of the elements below, most include most of them.

        • Agreements apply to Websites, Mobile applications, and other information and information technology including documents, email, and learning platforms
        • WCAG 2.0 AA is typically the accessibility standard. PDF documents may be governed by PDF/UA standard in addition to or instead of WCAG. Reference to the BBC Mobile Application Guidelines may be included.
        • The agreements often call for a web accessibility coordinator and the hiring of an independent consultant
        • Training both customer service, technical staff, and others responsible for web and mobile content is an aspect of most agreements.
        • The U.S. Department of Justice has required organizations to add accessibility skills to performance evaluations.
        • A posted accessibility policy included in or separate from a easily findable accessibility information page ensures the public is aware of accessibility commitments and has contact information in the event of a problem. Most agreements require one. And many companies are beginning to post such policies regardless of legal action. Read the post on LFLegal about Accessibility Information Pages.
        • The agreements require both accessibility testing, sometimes with an automated tool, as well as usability testing with disabled users.
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        New Players in the Digital Accessibility Legal Space

        Over the past year there has been a spate of law suits and demand letters filed by law firms new to disability rights and digital accessibility. A January, 2016 article in the Penn Record lists some of the cases. In February, 2016, Deckers Outdoor Company, the maker of the popular Ugg brand boots, was sued in Pennsylvania District Court for failure to maintain an accessible website. Read the news article about the Ugg Boots accessibility suit.

        In March of this year the Seyfarth Shaw ADA Title III blog reported on a web accessibility case in California against luggage retailer BMI/BND Travelware. The judge in that case ruled that the retailer violated the ADA by having an inaccessible website. According to the blog post, it was the first such court ruling in the country. (Earlier court decisions, such as those in the Target, Netflix or Scribd cases covered in earlier updates, found that the ADA covers websites, but those cases were settled before final rulings about the particular facts of those cases.)

        Another recent web accessibility case against power tools retailer Harbor Freight took a twist when the defendant turned around and sued the plaintiff’s lawyer who had filed the case. A March 25, 2016 article reports on the development, but after the article was published, the court ruled that Harbor Freight should not have counter-sued. Instead, said the judge, the company should have settled.

        Will the settlement — and others resolving recent litigation — follow the best practices outlined above? I hope so.

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