Presented by Beth Crutchfield VP of Policy and Program Services November 16 2016 Agenda Overview Where Things Stand Legal Status Enforcement Status Regulatory Status Dealing with Litigation ID: 725587
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Slide1
ADA and The Internet – Legal Update
Presented by:
Beth Crutchfield, VP of Policy and Program Services
November 16, 2016Slide2
Agenda
Overview
Where Things Stand:
Legal StatusEnforcement StatusRegulatory StatusDealing with LitigationSample Settlement Language (& Language to Avoid or Clarify)Final Thoughts & QuestionsSlide3
OverviewADA Litigation Landscape
Litigation under the ADA as applied to the Internet has drastically increased in last 20 years
This includes a rash of demand letters
DoJ has stepped up active enforcement of websites as a matter of ADA enforcementSSB has a long history of experience working with counsel in settlements, as well as design, development, QA, and product management teamsSlide4
The ADA &
the InternetSlide5
Where Things Stand: Legal StatusWhat does the ADA say about the Internet?
There are no specific published technical requirements that define how the ADA is applied to the Internet
Different circuit courts and the DoJ have different positions
This is a developing legal area and knowledgeable counsel is criticalSlide6
Where Things Stand: ADA Enforcement
The Department of Justice:
Enforces based on WCAG 2.0 Level AA guidelines as the technical standard
State and Local: Depending on your state, you could get pressure from state and local agencies or the State Attorney GeneralAdvocacy Groups: Pursue litigation to accomplish accessPlaintiff’s Counsel:
ADA-focused plaintiff’s attorneys are actively pursuing web-related claims, especially in recent months
Who is bringing the lawsuits?Slide7
Where Things Stand: ADA RegulationsWhen will laws be on the books?
DoJ has not issued a regulation adopting the legal standard for what constitutes an “accessible” website
Title III rulemaking (1190-AA61) has an issuance date of no sooner than 2018
Closest thing to official policy is the DoJ Advanced Notice of Proposed Rulemaking (ANPRM):In nearly all recently-settled cases the defendant was required to conform to WCAG Level A or AA requirements or a mix of bothSlide8
Dealing with Demand Letters“I got one! What do I do?”
What To Do First (Hint: Don’t call SSB)
Counsel is critical
Either your in-house legal team or external counselMajority of demand letters we’ve seen are boilerplate and rely principally on automatic testing results, not expert testingYour legal counsel can create a plan alongside a technical consultant like SSBSlide9
Sample Settlement LanguageSlide10
Compliance Timeline
How long do you have to remediate your site?
Sample Language
General Websites: 2 years or lessMobile Sites/Apps: 2 years or lessPlug-in Content: Varies
A 5 year plan is ideal
< 2 years = exceptionally difficult
3-5 years = challenging, but manageable
Consider starting with mobile sites/apps before desktop
While reasonable timeline is key - we recommend getting solutions rolling as soon as possibleSlide11
Lessons Learned: Compliance Calendar
When is the best time to work on compliance?
Sync your compliance calendar with your existing development calendar
Take into consideration:Busy timesHolidaysConferencesCode freezeBig launchesSlide12
Third Party SolutionsWhat about plugins, UX libraries, etc.?
Sample Language
Third party content will be periodically tested throughout the Terms of the Agreement
If a Third Party advises that they will not bring their content into conformance with the Access Standard, another third party provider will be evaluated in good faithAll newly created requests for proposal after the effective date of the Access Standard will include compliance with the Access Standard as a requirement
Third party services/content can be carved out, giving time to evaluate alternatives
Ads and non-functional components can be as well
Consider User interface (UI) library changes
All new contracts should reflect your accessibility policy, and current contracts should be updated on renewalSlide13
Lessons Learned: Technical StandardsWCAG, CVAA, ADA, 508…?
WCAG 2.0 AA requirements are the default standard (but not regulation or law yet)
Ask for flexibility in regards to:
Future ProofingMobile Exceptions“Accessibility Supported”Video - CVAA IP video regulations (47 CFR 79.4) Slide14
Lessons Learned: WCAG Carve OutsWhich sections can you leave out?
Ask for carve outs for items:
With no material impact on the user
That aren’t technically feasibleWe recommend asking for carve outs for:Audio Description or Media Alternative (Prerecorded)Captions (Live)Language of PartsParsingSlide15
Organizational StructureWho is in charge of accessibility?
Sample Language
Requirement to appoint a Web Accessibility Coordinator that reports to the CIO
Requirement to evaluate all employees and contractors based on web accessibility implementationRequirement to evaluate web accessibility coordinator based on accessibility
Focus on reporting & evaluating data – not on organizational structure
Decide on the role and department that works best for your existing structure
Cross-functional committees are a great idea, but better saved for year 4 or 5Slide16
Web Accessibility PolicyWhat is your accessibility policy?
Sample Language
Create, distribute and implement a web accessibility policy
A Digital Accessibility Policy should be defined, written, and widely distributed
Include the ability to update the policy upon written notice to the other party
Document your organization’s exceptions or limitationsSlide17
Public Accessibility Statement & FeedbackHow will you handle questions & concerns?
Sample Language
Publicly available, conspicuously linked, accessibility page
Overview of accessibility approachHow to report accessibility issues - email and telephone generally required, Web form nice to haveIf relevant, how to request alternatives
Public statement includes:
High-level information about the accessibility work of the organization
Contact information to inquire about accessibility or report issues.
Be sure web forms are accessible and there is a clear path for routing these requestsSlide18
Reporting RequirementsHow will you assess your progress?
Sample Language
Annual third party audits
Automatic reportsQuarterly meetings
We recommend:
Quarterly or twice a year face-to-face meetings to talk about progress
Documenting every step of the process to highlight your commitment to accessibilitySlide19
Web Accessibility TrainingWhat do your people need to know?
Sample Language
Provide web accessibility training to development and content team members
Mobile apps covered in most casesTraining occurs on an annual refresh, as reasonably necessary or on relevant job transition
Make sure dates for training fit in to an appropriate place in your team’s schedule
Three tier approach:
30-minute all-hands accessibility awareness
Role-specific training
Opt-in advanced training
Language should focus on outcomes, not type or approach of trainingSlide20
Automated TestingHow will you maintain compliance?
Sample Language
Purchase an automated web and mobile accessibility testing tool
Run automatic tests on a recurring basisPurchasing and deploying an automated testing tool is a key part of any programRecurring automated tests are typically done quarterly
Can be done internally, but most SSB clients choose to outsource
No material cost associated with this approach, allocating a few hours per report under an structured service agreementSlide21
User TestingHow will you maintain compliance?
Sample Language
Engage a user group of people with disabilities to test the system during the development process
Get users with disabilities actively involved in the development process at points when they can make a positive impact on the resultUser testing helps demonstrate when a site or application is functionally accessible even if it is not 100% technically compliantSlide22
Lessons Learned: Scoring ComplianceHow will you score compliance?
Scenario:
There are 10,000 images on a website. In testing, one image is found to be missing alternative text.
Scoring ComplianceOne image is missing alt text. Score: 99.9%One image is missing alt text. Score: 0%
General vs. Perfect Compliance
General
: This website is materially compliant with that portion of the WCAG.
Perfect
: This website is
not
compliant with the WCAG as a whole.Slide23
Bug Fix Priority PoliciesHow will accessibility bugs be addressed?
Many settlements have standard language requiring accessibility bugs to be handled with the same priority as other bugs
As a best practice, accessibility bugs should be mapped into your organization’s specific bug control approachSlide24
Support & Assistance
How will customers with disabilities get help?
Sample Language
Provide a method for users with disabilities to access customer serviceTraining for customer service representatives to properly handle and escalate issues related to accessibility Provide alternative telephone service for visually impaired customersProvide alternatives format documents on request
Train front line CS reps to handle accessibility issues
Helpful to document your “catalog” of accommodations
Alternative telephone service - proceed with caution!
Providing Braille or large print materials on request is standard in most settlements
Consider adding a flag to an account so the customer does not have to request alternative materials more than onceSlide25
Key Points to RememberWhat did you learn today?
There are no specific published technical requirements that define how the ADA is applied to the Internet
If you get a demand letter,
secure counsel first - find someone with experience in ADA settlements as they pertain to the Internet.Once counsel is in place, a firm like SSB can work with your legal team to come to an agreement that works for everyoneMost settlements use WCAG 2.0 AA as the standard for accessibilitySlide26
Questions?Slide27
Thank You
Contact Us
Presenter Contact Info:
Beth Crutchfield, VP of Policy and Program Services
beth.crutchfield@ssbbartgroup.com
SSB Contact Info:
info@ssbbartgroup.com
(800) 889-9659
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SSBBARTGroup.com/blogSlide28
About SSB BART Group
Unmatched Experience
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Fourteen hundred organizations (
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Fifty-five thousand audits (
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One hundred fifty million accessibility violations (
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Three hundred sixty-six thousand human validated accessibility violations (
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