for taking time out of your schedule and joining us. My name is Bethany Sirven, and I am the marketing director here at UsableNet. Our webinar today is “Analog Laws Meet Digital Technology: “Is Your Website ADA Compliant?” Before we begin, a few housekeeping items. All attendees are muted, but if you have a question during the presentation, we encourage you to please send them in via the chat box.
We have reserved 15 minutes at the end of the hour for a live Q&A. If, during that time, we don’t get your questions answered, we have provided contact information so you can get in touch with us for a more tailored discussion for your company or position.
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Our speakers today are Jason Taylor, Chief Innovation Strategist here at UsableNet, and our featured presenter and special guest is Lewis Weiner, Partner, Eversheds Sutherland. I’m going to go ahead and let Lewis introduce himself now and tell you a little bit about him and his friends’ experience in this area, Lewis? It’s my great pleasure to be presenting this webinar with Jason, you know, a proven professional in this area.
His company, UsableNet, is one of the premier ADA-compliance companies out there, and it’s again a great pleasure to be working with him and his colleagues.
Eversheds Sutherland is a global law firm. We have 69 offices in 39 countries, but most important and relevant for today is our background and experience in the ADA and ADA technology area. We first got involved in this area about six or seven years ago when we were asked to represent a class of blind federal government contractors who were unable to access and navigate the government’s website that government contractors need to access in order to register as government contractors, and most importantly, get paid.
Rather unbelievably, the government itself’s website was not ADA compliant.
When we were asked to handle the lawsuit, looking at it, again, putting ourselves back six or seven years ago, we recognized the enormous impact that this lawsuit could have and how critically important that lawsuit and the learning that would come with it would have on our ability to educate our clients as to their need to have their websites, which are now ubiquitous, making sure that they are ADA compliant.
The title of this program, “Analog Laws Meet Digital Technology” I think is particularly apt. The ADA, as we’ll discuss briefly in a moment, was an act in 19, in the early 1990s. It is an analog law, but we have digital technology, and the asymmetry between the two creates risk for every company that’s operating a website or participating in the digital economy. And we’ll talk about what that means and the scope of that, as well.
We know, for example, with respect to curb cuts, the access by which people in wheelchairs have to get from a parking lot into a store.
We know how wide those have to be to the inch. We know how high rails in restrooms have to be, how high they have to be off the ground to a millimeter, but we don’t have laws that tell us how your website can be compliant with the ADA.
We have an analog law that was enacted in an era before we had this digital technology that’s now being applied to digital technology. And again, the assymetry between that law and the technology is what creates risk for your companies and the way that you’re doing business online and digitally.
Bethany, let me turn it back to you.
Lewis has a great introduction to, also the areas that we’re gonna cover today. One of my roles here at UsableNet is running our research. We track every digital-based ADA lawsuit in the United States that’s filed federally today.
So we capture a lot of the data about the types of companies that are being sued, the types of remedies that are being requested by plaintiffs, and generally just an overall giving back to the community about the trends that we’re seeing in this particular space. Today, it’s gonna primarily be Lewis talking about a number of things, one, he’s gonna give a background on the ADA and sort of talk about how we got here.
Then we’re gonna cover the litigation trends that we’re seeing right now, and then we’ll do a little segment on the general defense of an ADA website lawsuit, how that can be separated into three particular areas. And then we’re gonna talk about practical tips and best practices to mitigate the risk of being issued with a lawsuit and basically protecting your company going further. One of the things we typically like to do, especially for Lewis and myself, is to understand who’s actually listening to this course, so we’ve got a little poll that we’d love everyone to just participate in.
It gives us an idea of the types of people that are listening to this webinar and on this webinar so we can tailor the content specifically to the group. Typically find that there’s actually a wide range of responsibilities, which are involved with ADA and web accessibility and app accessibility.
Affects pretty much every department inside a company, so it’s always interesting to see that sort of spread with regard to the numbers that are on. Just to give you an idea, I think you’re gonna see the poll results. We’ve got a reasonably wide spread across, people that are working inside teams that are testing and remediating, consultancy and agencies have a big role in this, especially if the clients had purchased that website off an agency.
It’s involving legal counsel clearly because the lawsuits involve legal counsel, but it’s also very much important to involve the marketing teams, so that sort of reflects that. I’m gonna pass it back to Lewis now with sort of information, and then take us for a bit of a background of the ADA and how we got here.
Back to you, Lewis. Again, as I mentioned briefly in the introduction, the ADA, it’s a civil rights law.
It was enacted to protect against discrimination based on disability. It was enacted in 1990, so kind of put yourself back to, you know, 1990 era. The internet was not a thing, you know.
Email really wasn’t nearly as ubiquitous as it is now. You know, the ADA was really designed to deal with physical barriers, and the technological issues were, you know, a footnote to the statute.
You know, the ADA imposes accessibility requirements on public accommodations, the idea of, is your facility a public accommodation? So if you think about, in the traditional sense, banks, sports arenas, restaurants, public accommodations.
When we think about that in digital form, it takes on a different perspective.
You think of access, web access that is not password protected or restricted. Are you selling goods, services on the internet?
And the idea that the internet is now a place of public accommodation is a relatively new concept, that again, as the last point notes, again, in this analog law, it was designed to address physical accessibility issues with traditional brick and mortar storefronts. I wanted to just build on that to get people to understand how complex this is in the digital space compared to analog.
And you may have some points to add, but in the physical space, access was all about getting into a building, not how that business operated.
In the digital space, digitally everything about how do you do banking, how is the banking service delivered to you, how is the shopping experience delivered to you, that all this has become very, it’s a far more complex question about accommodations.
You know, the industry– on the screen is the language of Title III of the ADA.
I’m not gonna read it, you all can read that. But that’s really, that’s the text of the language that was originally enacted which talks about places of public accommodation. And again, what does Title III cover?
Places of public accommodation, commercial facilities, you know, again, you can read what it covers.
The relief available under Title III is injunctive relief. You can get attorney’s fees and costs, but there’s no compensatory damages and civil penalties.
What you’re seeing, what we’re seeing in the, you know, thousands of lawsuits that have been filed over the last two or so years against virtually every industry sector is a combination of a claim for a violation of the ADA seeking injunctive relief paired with what we call the mini-ADA statutes, the state civil rights or human rights laws. The most common one is the New York State and New York City human rights laws, and the reason that those are added into the complaints is because those are the statutes that give rise to the monetary damages.
So again, the ADA itself does not provide compensatory or civil penalties.
It’s injunctive relief only. The money damages come from the application of the mini-ADA or the state ADA-like statutes. You know, the problem that we have, and I alluded to it earlier, is while we know to the inch how wide a curb cut has to be. That’s because there are regulations that have been enacted that tell us those things.
The question that we have to ask is, where the heck are the regulators here?
DOJ is responsible for providing guidance as to what is required under the ADA. They are responsible for enforcing the ADA. In 2010, the DOJ issued a Notice of Advanced Proposed Rulemaking, which would have adopted technical rules for ADA website, ADA compliance. You would think that that would be a relatively uncontroversial, easy thing to enact, yet it got kicked around from working group to study group back to working group, out for comments, back and forth, and the next thing you know, it’s 2016.
What we’ll talk about in a moment, WCAG, the Web Content Access Guide, which is now at version 2.
1, which was poised to be enacted, did not get enacted. The current administration came in on a platform of deregulation, and generally speaking, any regulation that had not been formally adopted got pulled. Well, WCAG, the technical specs for web access, you know, for what would make a website ADA compliant, got pulled. So the law, like nature, abhors a vacuum, but we have a vacuum, and what’s filled the vacuum were these thousands of lawsuits that basically say to the commercial community, there is no ADA-compliant website out there.
WCAG, again, the Web Content Access Guide, was originally promulgated by the World Wide Consortium.
The World Wide Consortium are the people who brought us the WWW dot configuration that is now as commonplace as the nose on your face.
They came up with this web content to access guidelines that would have provided the tech, and do provide technical guidelines that assure web compliance with the ADA. They are considered by many groups to be the true means of ensuring website accessibility, except they’ve not been formally adopted. What you’re seeing now is on a piecemeal basis courts applying the WCAG standard because no other standard really exists.
You know, the legal standard that can be applied now is the 2010 standard which is, does your website provide, quote, effective communication, end quote?
For the lawyers on the line, and others may be familiar with these concepts, as well, the fact that there is no legal standard that you can measure your compliance against, means that if you wanna defend the lawsuit, you’re gonna have a really hard time getting the case dismissed at the earliest possible dispositive motion point, which is Rule 12 motion to dismiss because the question as to whether your website provides effective communication is now a question of fact, and questions of fact can first be resolved at the Rule 56 stage.
It could be that the parties agree there are no material issues of fact in dispute, and that one party or the other should win as a matter of law. That’s the Rule 56 standard. But if you know, between Rule 12 and Rule 56 sit the discovery rules, the 30s.
That’s where the cost of litigation comes up.
That’s where the void, the vacuum, that not having regulations promulgated and enforceable come in, that’s where the plaintiff’s counsel’s lawsuits come in because they’re filing these lawsuits knowing that it’s gonna be really difficult to get a motion to dismiss granted, so they’re looking to settle these lawsuits on an individual basis at that early point. So they’re saying, basically, we’ll settle with you for just about and perhaps a little less of what it would cost for you to file a motion to dismiss, but settling with us brings certainty to a certain extent because you’re only settling on an individual basis, not a class basis.
But the fact that WCAG 2.0 was never formally adopted is what creates that vacuum, and is the difference between knowing to the inch how wide the curb cut needs to be and not.
Okay. I’m having a little bit of trouble hearing you. does that work any better?
that Lewis talked about, and I think it’s important to go back to the year 2000 in the case of web accessibility and app accessibility. The DOJ have joined over 15 years from the year 2000 many cases where they felt that it was very important that organizations were providing digital access to all.
Some of the first settlements were people such as Bank of America.
So think of very important aspects of your life and everyone’s life, which is banking, education, healthcare.
These are the types of lawsuits that the DOJ joined the plaintiffs, and in these cases, most of the plaintiffs were classed as traditional advocacy groups like the National Federation of the Blind and weren’t individual plaintiffs. But essentially, the DOJ did spend 15, 16 years establishing that they truly believe that the ADA covers web and apps. They probably would argue that they tried to do a good job of establishing that the WCAG 2.
was a standard that they felt acceptable in settlements. So essentially defining what the standards were, but this moment in 2017, which essentially meant that those, as Lewis said, those technical standards were not added to the statute meant that the legal position was open and available for people to take that standard that the DOJ created of saying, well, every website and app should be accessible, and actually, the WCAG 2.
0 is something that I could use to determine whether a website is or is not accessible.
And that gave plaintiffs and plaintiffs’ law firms the opportunity to basically go in and create a volume amount of lawsuits against companies. And you can see, since 2017, we’re talking about thousands of federal lawsuits.
Lewis is gonna talk about, it’s not just about federal lawsuits. He’s gonna talk about, it’s state lawsuits, it’s also demand letters.
But I also think there was something that Lewis explained to me, which I think is very important that’s missing today. It’s not just the missing WCAG 2.0.
It’s also the, it’s also the missing of, well, how long does the company have to do this? What is the process that someone could report that they’re having issues?
So there’s such a gap in the legislation, but these lawsuits have sort of the room to breathe.
However, I’d say two things. The DOJ weren’t quietly doing this.
Most companies should be aware that they should have accessible websites, but I think most companies have done less than they should have, so they’ve exposed themselves. And the same time as the DOJ was doing this, federal and state laws were being established such as the Section 508 and educational based requiring websites to be accessible.
So this isn’t a surprise technology, it’s not a surprise, but you should make sure your websites are accessible or your apps are accessible.
But I don’t think a number of, most companies have taken it and made it a priority, but they probably should do today, Lewis– One is in the case that we brought against the government to make its website ADA compliant, the sticking point was the government itself would not agree to make its website WCAG 2.
They took a very hard line that the legal standard was effective communication despite the fact that in the consent decrees that they were entering into in those 222, the 46, the four cases on the top line, they were imposing WCAG 2.0 on the defendants in that case. They just refused themselves to be subject to that same standard. The other thing that you’ll note, and it bears out what we said earlier is when they pulled the WCAG standard from the Notice of Advanced Proposed Rulemaking, that’s when you start seeing this spike in cases.
DOJ has basically seeded enforcement of the ADA to the plaintiff’s bar, and you’re seeing that those 3,000 cases filed between 2017, 2018, and the trend has continued unabated in 2019.
(microphone stuttering drowns out speaker) (microphone interference drowns out speaker) Sorry, I think that.
(microphone stuttering drowns out speaker). If we could go to the next slide.
and read that out while we wait for Jason to come back on his audio?
(Bethany laughing) But thank you for your patience while we work through the technical issues.
But if you could go ahead and open the poll and it asks the question, how confident do you feel that you understand what’s required by, of your website in order to make your website ADA compliant?
While we’re waiting for the poll, someone has asked whether the slide will, someone has asked whether the slides will be shared, and yes, we intend to.
If you’d like a copy of the slides, just let us know and be glad to share them.
You know, a typical poll result, I think, as well for us, which is around 50% of people got a good idea, 50% of people don’t have a strong idea whether their site is ADA compliant. I wanted Lewis now to cover the sort of legal trends.
If you could take us from here, Lewis, through the legal trends that you’re seeing today, that would be very useful. reflecting on those poll results, there’s nothing surprising about those poll results. We have defended several hundreds of these cases, and I would say in the majority of them, and when I say majority, I’m talking over 75% of the cases.
The IT departments tend to already know about the problems. In fact, they knew about them several years ago.
But because of resource allocation, the fact that no one was really complaining, these issues got pushed to the back burner.
But now that these lawsuits have been filed, what I hear a lot from IT departments is a sense of indication, “Hey, we’ve been telling them that we got this problem. “Now, we’re actually gonna fix it.
” So the idea that people say, “Yeah, I’m fairly confident “that I know the problem is not an unexpected response.” The next question, though, is, “But have you remedied those problems, “and are you still exposed to litigation risk “because of extant problems?
And with that, let’s talk about some of these litigation trends. If we could go to the next slide. Great, the private lawsuits allege generally that the websites are not compatible with the ADA, that they don’t provide access to, you know, blind and visually impaired individuals and that they don’t meet WCAG 2.
0 although they’ve gotten a little savvier, and the lawsuits more recently aren’t citing to WCAG 2.0 because it is not the enforceable standard.
The standard, as we’ve discussed, is does your website provide effective communication? The lawsuits seek remediation of the website, and most but not all also assert violations under the mini-ADA or state ADA actions.
So the questions that you need to ask are, first, is your website a place of public accommodation?
So if you are a bank, and accessing your bank’s website brings you to a dialog page that requires you to enter a username and a password, I would argue that your website is not a place of public accommodation. If your website, however, is one of the millions of websites that I got ads for over the last several days saying, “Cyber Monday, come visit my site, “and everything is 20% off,” I’m fairly certain that someone’s gonna conclude that your website is a place of public accommodation.
And there are various gradations of that. So are you providing information on your website, but really no access for sales? Again, generally speaking, informational-only websites are not places of public accommodation to the extent they are not offering for sale goods or services.
But could the information lead to the purchase of a good or a service? There are some courts that have taken a very narrow or, depending on your perspective, very expansive view of what constitutes a place of public accommodation.
And they have said that if information is reasonably likely or linked to the purchase of a good or service, then the information will be considered a place of public accommodation. So first, is your website a place of public accommodation? I think we have to view that expansively and assume, unless we can determine that it is not, the presumption is that most websites are places of public accommodation, again, drawing a painting with a broad brush there, but there’s a general proposition, most websites are places of public accommodation.
Then the question is, is your website compliant? And the question there is compliant by application of what legal standard.
Does it provide effective communication, or is it WCAG 2.0 compliant, which is a way of saying it provides effective communication as judged by the objective criteria of WCAG.
But again, WCAG is not the formal legal standard, but it is a way of establishing that your website does, in fact, provide effective communication.
And then we get to the question, there are some more of ethereal question, does the plaintiff even have standing to bring the lawsuit? There was a case recently where a plaintiff sued a credit union, and the credit union successfully defended that case and defeated it at the summary, at the motion to dismiss Rule 12 stage, how?
Not by arguing that the website was not a place of public accommodation, not by arguing that the website did, in fact, provide effective communication, but by threading the needle and saying this plaintiff didn’t have standing because this plaintiff was not a member of the credit union, and more importantly, wasn’t eligible to become a member of that credit union. So we have to ask those fundamental questions. Unfortunately, that standing issue is not one that is broadly available.
You end up asking questions like the Supreme Court posed in its Spokeo decision from several years ago, has the plaintiff suffered concrete injury? Courts, as those who are familiar with that standard, when Spokeo first came out, the pendulum swung, and courts were saying, “Wow, you have to do more than plead “the naked state statutory violation.
The pendulum has swung back, and it’s become almost like an eight ball, minimum pleading standard. Have you alleged that there was some harm that befell the plaintiff as a result of going to a website, allegedly not being able to access that website? You know, but the standing issue is one that if you’re relying on that wholly, I think it’s a thin reed, but it is something that’s out there.
Jason, do you wanna talk about if you have a timeline? (microphone stuttering drowns out speaker) (microphone stuttering drowns out speaker) (microphone stuttering drowns out speaker) Jason, we’re unable to hear you.
So I’m actually gonna try it again. (microphone stuttering drowns out speaker) Okay, all right.
(microphone stuttering drowns out speaker) I’ll start this, and then when Jason is back, I’ll turn it over to him, but who should you get involved in the lawsuit?
And there’s two questions that you have to ask there. One is, legally, who should you get involved, and the second question is technically who should you get involved.
Legally, the question that a number of our clients ask and that we ask is who built their website? Were representations made about ADA compliance in the entity that put together the architecture of the website? Are third parties involved that link through the website, you know, a client’s website that are causing these problems?
So websites are not– (microphone interference drowns out speaker) Yeah, websites are not wholly contained.
They frequently link to other websites.
What we’re seeing is requests by our clients that they ask third parties who link to their website to certify that their sites are ADA compliant, and a number of our clients are being asked that same question. You know, you link to our website, tell us that you are ADA compliant and how you meet the requirements of the ADA. So there is the legal aspect of who gets involved, and then there’s the technical aspect of it, of who best to help you understand the architecture of your website and how best to meet the requirements of the ADA.
And that’s where UsableNet really has distinguished itself as the leader in the ADA compliance area. Jason, are you back?
Yeah, I think it’s very important also to make a note, I think, for everybody here.
We talk about thousands of lawsuits, we talk about probably thousands of demand letters. I think it’s very important to, and Lewis, you probably, I think you touched on this, but the vast majority of these settle very quickly, they settle within 60 days. And it’s very interesting how Lewis has helped explain that between the motion to dismiss and the 56, and that’s really the expensive part. And essentially, people are realizing that when they get a lawsuit, they ask the technical team, where are we?
The technical team probably says, “Well, “we’re not as good shape as we’d like to be.” A lawyer hears that, they know that they’re gonna have a hard time dismissing it based on the fact that the website’s not in a place that they wanna be, and then they move to settle as quickly as possible, to reduce the amount of plaintiff’s, lawyers’ fees. So that’s really the reason why most of these places settle. But I think the most important point at the end is, and Lewis touched about this, and maybe you could talk about practically how you maybe protect yourselves more.
Most lawsuits settle with one individual.
That does not protect you from the next lawsuit if you haven’t remedied the issues that we know you have on your website. What’s your experience in that? We’re actually seeing about 25% of the lawsuits today are lawsuits against companies that have had previously had lawsuits. Is that the same that you see, as well, Lewis?
That’s consistent with we’re seeing.
For the first two years or so, we weren’t seeing a lot of repeat lawsuits. As more plaintiffs’ counsel have gotten involved in this, we’re starting to see some of the same companies get sued two or three times. There was an 11th Circuit case that came out last year, or actually, it was earlier this year that said that if a ADA web access case has been settled, and the defendant is in the midst of remediating its website, that fact scenario does not provide a bar to another plaintiff suing the company for the alleged ADA violation that occurred prior to the completion of remediation.
So how do you protect yourself against another lawsuit?
You remediate your website.
You make sure that your website is ADA compliant. I kind of view this, and let’s be clear about this. These are blackmail lawsuits. And I don’t think I’m offending anyone by saying that, but when I asked my clients how many complaints have you received from blind or visually impaired individuals about web access?
The combined number is zero.
These are lawsuits that were manufactured by plaintiffs’ counsel.
I’m not saying that websites should not be ADA compliant. I just think that this is something that has come about as a result of opportunity, and do most websites, in my opinion, provide effective communication, I think they do. I think it’s very expensive to prove that, but there’s always room for improvement, and there are some websites out there that simply don’t provide ADA access.
And for those websites, and again and for others, there is room for improvement.
The WCAG 2.0, the reason why it was never, it was never enacted is there were a lot of questions about safe harbors, about exemptions. So for example, Title I, there was an exemption for businesses of 15 or fewer employees. And there was a lot of debate about the economic burden of requiring WCAG 2.
0 compliance on smaller companies.
And that’s where the WCAG standard got hung up, on issues of implementation, how long should companies have to implement, what should be the penalties for failure to implement, should there be any grandfathering? So there were a whole host of issues that never got resolved that, again, we’re now dealing with on the back end through these lawsuits. So how do you protect yourself against another lawsuit is understand your technology, understand the architecture of your website. What we encourage our clients to do is to triage their website.
To me, there’s a big difference between the picture of the daffodil and the dropdown box.
When you go to book an airline ticket, do you have to go through a series of dropdown boxes? Those are the critical access points. The picture of the daffodil, not so much. So I say, you know, again, will you agree, as part of your remediation to say, “This is a picture of a daffodil” so that a blind user understands that?
Yeah, you will, or you should, or you know, again, it doesn’t cost a lot to do that.
But your real focus should be on where are the problem areas, and do your dropdown boxes provide access to people who understand so they understand what they are buying, what their options are, et cetera. One of the issues that we had in the government case was that, you know, for me to get online, I am not visually impaired. It takes me virtually no time to zip through an airline website to purchase a plane ticket. For someone who relies on a screen reader, it’s going to take considerably longer.
What was happening with the government’s website?
It was timing out after two minutes. Well, if you’re sighted, two minutes to go through a webpage, that could be three, four, five times the amount of time that it should take, so timing out after a couple of minutes doesn’t seem like a big deal. But if you are blind or visually impaired and are relying on a screen reader who has to read to you the dropdown boxes, two minutes is an insufficient amount of time.
So there are adjustments like that that have to be made to accommodate the needs of the blind and visually impaired.
There are other what I consider low-hanging fruit of items that can be remedied to ensure that your website provides effective communication to the blind and visually impaired.
And again, I’ll just say this, and I’ll turn it back to Jason. But I view this like the two campers who encounter the bear. The one turns to the other and says, “I can’t outrun the bear.” And the other camper says, “I don’t have to outrun the bear.
“I just have to outrun you.
And what we want here is for your companies not to be the ones that are easy targets. Make certain, if you can make certain, just basic changes to your websites, you avoid, you know, again, you outrun the other guy, and you make the other company the lower-hanging fruit, the easier target.
And we’ll actually just go off the slide here to sort of take you through some practical stuff.
I also wanna say that we’re gonna deliver with the follow-up to this webinar an email with three or four free resources which any company can start using to sort of get to that place which Lewis talks about, which is a safer place, meaning what Lewis is indicating is that there are ways that plaintiff lawyers are looking for websites. The first thing they’re gonna do is they’re gonna run from some free tools that test for WCAG 2.
and see whether there’s lots of issues. So we actually have a free service that you can do that with, and you can see where you’re at.
So the first thing that I would say practically is on all of the major webpages and user flows that you have, make sure that you’re as clean as possible using those automatic tools.
That’s gonna be, that’s gonna drop you down with regard to the lower-hanging fruit that Lewis talks about. It also will practically improve the accessibility of your site.
So a very important aspect on that front, as well, which I think a lot of the time, people may miss out is 95% of websites today were purchased off of somebody. You paid a web designer to build it, you paid an agency to build it.
First call is to call the company that knows about websites and find out what have they done about web accessibility, how can they help you around web accessibility? What’s their position in terms of making sure that the next website they build is accessible? So thinking about adding to contracts, adding into renewals, that you put the responsibility of web accessibility onto your agency.
The second thing that I know Lewis and I have an opinion about is that we strongly recommend that whatever your plan is, you tell people about. Again, if you’ve got a good accessibility statement.
We wrote a blog about this where it talks about we’re doing this, we’re working with these companies, this is our commitment. It’s another thing that a plaintiff lawyer looks at and thinks, do I really wanna show a company that’s already on the front foot because I really wanna go after companies that are on the back foot? ‘Cause the first conversation, the negotiation, if you’re on your front foot and you’re very proactive about what you’re doing, that puts the company in a better negotiation with a lawyer.
They try and avoid going after companies which are on the front foot. So into Lewis’s point, train support staff on looking out for people calling, know how to escalate if someone with an assistive device has a problem, making sure that it’s part of formal training with regard to online support I think is very important because it’s also saying you can make a point about, it’s about accommodating.
It’s about, again, being on the front foot. We would also encourage you engaging a group of people who have disabilities, whether that’s employees, relatives of employees, reaching out to clients that potentially have disabilities, reaching out to local nonprofit organizations.
There’s many ways to do this on a very affordable basis.
And then I’d always look to invest in creating an expert that’s gonna know the subject matter. Now, of course, you can hire, but you can also allocate someone internally, train someone internally.
It doesn’t have to be a external if you’re a small organization. Just make sure that you’ve got someone who knows the subject quite well internally. And again, really just saying to Lewis’s point, be one of the companies that don’t come up when they test 100 sites, you test quite well, you’ve got a great statement, you’re on the front foot.
This will protect you more than any sort of secondary sort of legal advice you’re gonna get.
Being proactive, I think, is gonna put you in the best possible position.
I don’t know if you had anything to add on that, Lewis. Google WCAG 2.0, and you’ll see the standards.
And included among the standards are number two right here on the screen. Have an accessibility statement on your website.
And they’re not difficult to draft, and we draft them all the time for clients. We do someone a generic one, some, they want a more bespoke, customized accessibility statement that reflects their company’s values.
We’ve done both, but that’s the low-hanging fruit that you can just include an accessibility statement.
Our goal is to provide, you know, effective communication to all users. Again, most companies that are customer facing, they want to be customer friendly, they wanna let all of their customers, disabled and non, know that their goal is to provide a positive customer interface experience.
Have a feedback loop. Say, you know, in your web accessibility statement at the end, if you’re having trouble with our website, contact us, here’s a phone number, here’s an email address, here’s a place where you can leave a comment. But again, just something that says to your community, we care about you, and we’re invested in you.
to be, you know, the stuff of James Bond behind the scenes or the guy that knows the secret code.
There’s some real basic blocking and tackling that can be done that will help get you over that first hump. 10 minutes to go.
I think we wanted to make sure that we’ve got some time for Q&A. But I wanted to quickly get Lewis’s prediction of 2020.
Let me talk about two things. was filed with the U.S. Supreme Court, and the petition for cert was denied.
That was the Robles v.
Domino’s Pizza case out of the Ninth Circuit, California. And something that was very interesting about the Robles case, and that is that at the district court, the trial court level, Domino’s defended by saying, “Hey, look, “we have an 800 number up on our website. “Anyone that wants to call can basically get “the same goods and services “as someone who can access dominos.com.
” And the trial court agreed with them and said, “Yeah, that is effective communication.
And the Ninth Circuit, the court of appeals, reversed and said, “It’s not that an 800 number “does not provide effective communication.
“It’s that,” and it gets back to that dichotomy that I discussed at the very beginning. It’s the difference between being able to dismiss a case as a matter of law versus finding that there are no material issues of fact. And what the court basically said is the 800 number alone, just telling us you have an 800 number, does not tell us that you provide effective communication because it doesn’t tell us whether it’s available 24/7.
It doesn’t tell us whether, you know, you can order a pizza on the phone contemporaneous with the store openings.
You know, there are a lot of questions about that. But keep that in the back of your mind that having an 800 number is just, again, one of those items that, you know, kinda fall to the low-hanging fruit category.
Having that and, again, letting your community know that there is a way for them to contact you if they’re having problems, if they want to access something that otherwise might not be available on the web is, again, something that I would encourage you to consider. The other thing that we are seeing now in 2019 that I suspect will continue in earnest into 2020 are gift cards.
Recent spate of lawsuits, last count, there were over 200 of them, filed against retailers claiming that the failure to have Braille-available gift cards violates the ADA.
The genesis of this case, and I learned this from plaintiff’s counsel himself, is he went to a Starbucks, and Starbucks actually makes a certain number of gift cards available in Braille.
And he then went to Target, and he looked at the rack of gift cards, and other than Starbucks, none of them had Braille. And he just started filing lawsuits. And those lawsuits are following the same general trend as the website lawsuits.
You know, they’re settling on an individual basis, plaintiff’s counsel’s demanding some sort of injunctive relief.
He is being very flexible in terms of the injunctive relief, so for example, not every gift card has to be in Braille. You can have a certain number or percentage of them in Braille available on demand or on request. You can also make gift cards available electronically. But we’re seeing, and I think we’re going to see more and more lawsuits filed against, again, we’re seeing it in the gift card area.
I think you’re gonna start seeing them in the food and beverage area, the indication of calories and other types of information that’s on food packaging.
And I think that, again, there are defenses to these cases, but for most companies, they don’t wanna be seen as the company that was opposing implementing an accommodation for the disabled, for the blind, for the visually impaired.
And that’s where corporate image and the law hit head to head, where, you know, to say to a company, “Yes, you could defend this, “but what’s that going to do to your corporate image? “And do you wanna be known as,” again, Robles v. Domino’s.
Like, does Domino’s wanna be known as the company that didn’t wanna make an accommodation for the blind?
No, and in fact, they did make accommodations for the blind. But again, their name is associated with this lawsuit that just went up to the Supreme Court. Very few companies are willing to put their corporate image on the line, and that’s something to consider in this whole ball of wax. I know there are a number of questions that have been posed, and we wanna get to those, so let me turn it to Brittney and to Jason to kind of walk us through some of the questions.
And if we don’t get to your question, we will answer them offline, but let’s get started on the questions that have been posed.
if your website is accessible, do you also need to make a phone app accessible, as well? that we expect to see in 2020 in that.
And Jason, I think you’ve had experience with the apps. that there’s an increase of lawsuits around mobile apps, I think, for two reasons.
The main reason is apps are fundamentally important to everybody.
If they’re not accessible, clearly, there’s gonna be a groundswell of, “Well, I can’t use apps, “and everyone else is using apps.” So I think it’s just as important as website access. And secondly, you know, court cases such as Domino’s list apps as part of the target. So of course it creates opportunities for plaintiff law.
Lewis, did you say that showing progress towards remediation after a lawsuit doesn’t help in future lawsuits if another is started after the first?
and even if it is, if it relates back to inaccessibility prior to the remediation, the 11th Circuit has said that’s fodder for another lawsuit.
That plaintiff does not lack standing because of subsequent remedial measure. They may still have been damaged or harmed.
The problem they’re gonna have is the remedy that they would seek under the ADA has already been effectuated. They would therefore have to bring some type of claim under a baby, mini, state ADA claim showing that they were actually damaged.
It’s not the highest hurdle, but it’s also not the lowest rung on the ladder. What we’re seeing, the repeat cases that I’m seeing are ones where the remediation is not yet complete.
I’ve not had one yet where the remediation is fully complete, and the lawsuit’s then filed after the fact.
And again, the problem that you run into is just one of cost and efficiency. I’ll make up numbers, but if someone’s willing to walk away from a lawsuit for $5,000, and you can say, “Look, we’ve remediated,” and they say, “Well, I’m willing to walk away “for five grand, 10 grand.
When you know the cost of litigating that to get them to go away could be that and more, it’s difficult for companies to, you know, they’ll hold their nose, they’ll stamp their feet, and it stinks to high heaven, but that’s the blackmail, and they’ll say, “You know what? “I just wanna pay this guy “and have him crawl back under a rock “and just be done with this.” who may be using WordPress or other such web page creators where they don’t have access to basic code?
What can they, or are they likely to be– I think from a legal perspective they’re not protected because if they’re using a third party, they’re essentially, from a legal perspective, they’re meant to be responsible for what they are providing.
But I do see a trend in 2020 where CMS companies will be, I believe they’ll launch a whole range of accessible templates, meaning if you use these particular templates and you don’t change them, we’ve made sure that they’re accessible, and there’s a lot less chance that you can create inaccessible content because practically, it doesn’t make sense that an art gallery pays $50 a month for a CMS website that they can get a $10,000 lawsuit for using.
So again, I think there’s gonna be a very strong swing because of lawsuits towards where are these actual websites coming from? Are they CMS systems, are they design agencies, are they platforms?
Technically, these companies need to solve this problem for their client because those clients are not gonna stay with them if they keep getting lawsuits.
So I see that the technical side for the simpler side, which are based on CMS, CMS platforms will start addressing this as part of their offerings to clients. and it says, “Does this apply to law firms?
And yeah, I’ll tell you that when we first started defending these cases, one of the first things we did was have someone look at our website and make sure that we were ADA compliant.
The answer is yes and no.
There are some law firm websites that you can process your payment online using a credit card. I would say that it’s more likely than not that that type of website would be considered a place of public accommodation. Other websites that, legal websites that really just provide bios, et cetera, you know, I think it’s a closer call.
Interestingly, the lead plaintiff’s counsel who’s behind most of these lawsuits is a guy named Jeff Gottlieb out of New York, and Jeff has a website. And I happened over the weekend to take a look at Jeff’s website, and more importantly, and because it’s a new, he just put the website up a couple of weeks ago.
And he has a web accessibility statement (laughs), and it’s interesting ’cause his web accessibility statement says, “We strive to comply with WCAG 2.0, “but don’t in all cases.” So (laughing), you know, it’s interesting that the main protagonist here readily acknowledges that his website, while he maintains it does provide effective communication, isn’t wholly ADA WCAG 2.
Okay, I can see that some of our attendees are starting to drop off, and we are three minutes over. So I wanna go ahead and wrap up. I’d like to note that this webinar today was recorded, so we’re going to go ahead and get the webinar captioned, and I’ll put up a link to the recording early next week.
We will also make available the slides and some related resources, and I’ll send that out in an email in the next couple of days, so you will receive a follow-up email this week, as well, with a link to download the slides and other related materials.
And I wanna thank our speakers, Jason and Lewis, and ask if either of you have some concluding thoughts that you’d like to share.
that we’ll be producing a end of 2019 ADA law report which will reflect some of these trends. Just thank Lewis for his time, and also, thank you, Bethany, for organizing. extending my thanks to our friends at UsableNet. And let me say that one of the things that has impressed me most about UsableNet is they are practical and pragmatic advice.
You know, we encounter a lot of experts who work in the ADA space, and what has always impressed me about UsableNet is just how customer-friendly, pragmatic, and practical they are, and I highly recommend them.
We are going to be publishing in January our ADA Year in Review Report. If you’d like a copy of that, please let us know, and we will also be responding to those questions offline that we did not get to online. And thank you, everyone, for spending part of your day with us. And the webinar is now ended.