March 2017 Digital Accessibility Legal Update

Posted on Updated on September 28, 2020

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This is a post about how the law is helping make websites, mobile applications, and other technology more accessible to disabled people. Here are some examples.  A recent lawsuit helped make sure blind people can vote without help.  A Texas pharmacy worked with blind customers to develop a plan for talking labels.  A Boston hospital worked with blind patients to make sure blind people could use its website and print information.  Sometimes a lawsuit is not necessary.  People use a method called Structured Negotiation to work together.

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This post includes legal developments about digital accessibility between December 13, 2016 and March 6, 2017. It supplements Lainey Feingold’s digital accessibility legal update presentations, including the legal update sessions at the 2017 CSUN Assistive Technology Conference. You can also check out the slides from Lainey and Linda Dardarian’s CSUN presentation on Slideshare.

Visit LFLegal Speaking Page for information about upcoming conferences, webinars, and other digital accessibility legal update presentations.

In this post you will find information about the following. Please remember that this post does not constitute legal advice, and is not intended to address every legal development in the digital accessibility space.

Introduction

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 (many of which were mentioned during the CSUN legal update) can be found on the Legal Update Page.

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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.

We are certain to lose some tools during the current Republican administration, but many will remain. Advocates and their lawyers will use them to the fullest because, as the words of Martin Luther King remind us, “The arc of the moral universe is long, but it bends towards justice.” Digital accessibility is here to stay, and the law will continue do its part.

Regulations? Yes and No

Section 508 Refresh

In the last legal update I wondered whether the Section 508 refresh would finally become a reality. “Your guess is as good as mine,” I concluded. But it happened. During this update period, the updated Section 508 was finalized. Requiring accessibility of federal government purchases in the United States, the refreshed rules bring procurement requirements in line with the Web Content Accessibility Guidelines. Other changes are designed to enhance accessibility to information and communications technology (ICT — the new phrase for the refreshed regulations) for people with disabilities and make the rules easier to understand.

Then came the election and the order to freeze most federal regulations that were final, but not yet effective. Would the freeze order apply to Section 508? It appears not. On March 2 the Access Board changed the effective date by one day only. Here are the current dates with links to more information.

Don’t expect ADA web regulations

I’ve written extensively on the failure of the US Department of Justice to issue regulations requiring web accessibility for public and private organizations covered by the Americans with Disabilities Act. It is highly unlikely we will see such regulations as long as an anti-regulatory, pro-business Republican party controls the federal government.

But as I’ve also written, the absence of regulations does not mean that web (and mobile) accessibility is not required. It is. The ADA is a broad civil rights statute mandating full participation of disabled people in all aspects of society. In 2017 participation and inclusion is not possible without digital access. Regulations would have been helpful, but any company or government agency waiting for them is making a big mistake.

Right to Financial Information

Accessibility in the financial sector impacts core principles of privacy and confidentiality. Without accessibility, disabled people are forced to either forgo participation or disclose confidential information, risking identity theft. Structured Negotiation has long been a successful tool in ensuring that financial services are accessible to the blind community. (My Structured Negotiation book includes many stories of financial sector accessibility initiatives.) The most recent Structured Negotiation in the financial sector was with information giant The Motley Fool.

The Motley Fool announced its accessibility initiative on January 16, 2017. The company worked with two blind investors in the Structured Negotiation process, and the initiative will improve accessibility to the company’s award-winning website as well as its mobile application and email channel. No law suit was filed or needed. Linda Dardarian and Lainey Feingold represented the blind investors.

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Right to HealthCare Information

Health care information must be confidential and private, and that means it must be accessible. There are two legal developments in the health care space during the period covered by this update, both resolved in Structured Negotiation. (My book also has lots of health care stories!)

  • On January 24, 2017 the Massachusetts Eye and Ear Institute (MEEI) announced a collaboration with the Bay State Council of the Blind (BSCB) to improve access to information and services for blind patients and visitors.The hospital worked in Structured Negotiation with BSCB and blind patients on the initiative which covers website accessibility and document conversation. The blind community was represented by lawyers at Greater Boston Legal Services, and the Law Office of Lainey Feingold provided assistance.
  • In February, 2017, Texas grocery chain HEB, announced its talking prescription label initiative. The chain worked in Structured Negotiation with Disability Rights Texas, the American Council of the Blind of Texas, and blind pharmacy customers. The Law Office of Lainey Feingold assisted.Nine stores are currently equipped with the ScripTalk labeling system, and the company will be working with its negotiating partners on expanding the service.
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Right to Participate in Commerce

On January 19, 2017, the Washington Lawyers’ Committee for Civil Rights announced it had settled its accessibility lawsuit against the Sweetgreen restaurant chain. The suit, brought on behalf of blind customers, challenged the lack of access for the company’s online ordering features and functions on both the website and mobile app. Read the Sweetgreen accessibility press release. Read the Sweetgreen accessibility settlement agreement.

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Right to Government Services

Text to 9-1-1 services in Arizona

What could be more important than access to 9-1-1 emergency services? A lawsuit was filed in 2016 to force the state to allow deaf and hard of hearing residents to communicate with 9-1-1 operators using text messaging.

The state tried to get the case thrown out of court, but on February 14, 2017, a federal court in Arizona ruled that “the National Association of the Deaf (NAD) and three individuals who are deaf and hard of hearing could proceed in their lawsuit seeking to have the State and numerous local governments implement text to 911 capabilities.” Read NAD’s press release about the text to 9-1-1 ruling. Plaintiffs are represented in the case by Arizona Center for Disability Law, the Stein & Vargas, LLP civil rights firm, and the NAD.

Public Information Kiosks in New York

Public money must not be spent on technology unless all members of the public can use it — including disabled people. We were once again reminded of this important principle on January 17, 2017 when a settlement was announced about the accessibility of New York City’s public info kiosks.

The kiosks provide millions of New York residents and visitors free mobile device charging, domestic phone calls, access to city services, and a dedicated function to reach 911. Thanks to a settlement negotiated by Disability Rights Advocate on behalf of the National Federation of the Blind, those kiosks are now available to everyone.

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Right to Vote

In February, 2017 a federal court in Ohio ordered the Secretary of State to make its website WCAG 2.0 AA compliant by September 29, 2017. The case was brought by the National Federation of the Blind (NFB) and individual blind voters in that state. The case continues because the District court denied the claim that absentee voting needed to be accessible. That part of the case is being appealed. Plaintiffs are represented by Baltimore civil rights firm Brown, Goldstein and Levy and by lawyers at Disability Rights Ohio. Read more about the Ohio voting case, including links to court filings.

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Right to Education

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Right to Transportation

In a recent update I reported on accessibility lawsuits filed against Austin ride-sharing services that failed to ensure mobile app accessibility. On February 14, 2017 the Austin Business Journal reported that at least one of those cases is close to resolution. Read the Austin Business Journal article about accessible ride-sharing apps.

Republican Administrations: Now What?

The current Republican administration poses a threat to the civil rights of disabled people. The U.S. Department of Justice has long been a champion of digital accessibility. Read about the DOJ’s important accessibility work in the December 2016 Update.Now the United States has an anti-civil rights, far right person as Attorney General.

The Department of Education has long advanced accessibility in both K-12 and higher education. Read about the Department of Education’s important accessibility work in the December 2016 update. Again, its current Republican head does not believe in public education, and Republicans want to dismantle the department itself.

We can expect a change in how these departments approach digital accessibility. But we can also expect advocates and their lawyers to use all the tools in the toolbox to challenge rollbacks. And don’t be surprised to see new tools and other strategies as disabled people and their lawyers use the law to preserve and advance accessibility gains.

Other threats to disability civil rights in the current political climate include the following.

Federal Legislative Threats

A pending bill that would basically eliminate federal class action lawsuits is speeding through the Republican-controlled Congress. H.R. 985 would take an important tool out of the advocate’s tool box by decimating disabled people’s right to band together in a class action lawsuit. The disability community, the entire civil rights community, the American Bar Association and countless others are opposed to this legislation. Learn more about H.R. 985, the class action UNFairness bill.

State Roll-backs

In an anti-rights environment everyone who cares about accessibility must remain vigilant about proposed legislation on the state level. While at first glance legislation claiming to prevent fraudulent activity may appear useful, beneath the exterior there is often a lurking law to take away everyone’s rights, not just those who may mis-use or abuse the law. Read about the Maryland legislation.

Too many web lawsuits?

The legal update would not be complete without a reference to the many lawsuits and demand letters about web accessibility that are being filed by a handful of law firms around the country. As I said in our CSUN presentation, there is approximately one lawsuit for every 3.7 million websites in the United States, but if your organization is on the receiving end, even one is too many.

The best defense to a web accessibility claim is a good offense. The following best practices are embodied in many of the legal settlements reached through Structured Negotiation, litigation, or Department of Justice activity. You don’t have to wait until a lawyer knocks on your door (or pushes it open) to adopt these practices:

  • Accessibility plan should cover web, mobile, email, and all digital platforms
  • Use WCAG 2.0 AA as your accessibility standard
  • Appoint a Web Accessibility Coordinator
  • Hire an independent consultant if you don’t have in-house expertise
  • Train all staff
  • Add accessibility to performance evaluations of all responsible employees
  • Adopt a policy
  • Post an Accessibility Information Page on your home page and in the footer of your site. Here is a list of companies with links to their accessibility pages.
  • Use a testing tool
  • Conduct usability testing with disabled people.

Accessibility is a Civil Right. Inaccessible digital content means exclusion, lack of privacy, and lack of participation for disabled people. Let’s all do our part in these challenging times to make sure that right is a reality.