Website Accessibility Litigation: Here to Stay

Transcription

1 Website Accessibility Litigation: Here to Stay Presented by: John G. Lee Sephora USA David Raizman Ogletree Deakins Nash Smoak & Stewart Burlingame (March 5, 2015)

2 Today Highlight the growing prevalence of website accessibility litigation by website guests and customers Brief primer on law and legal theories supporting litigation History of website accessibility Litigation and Regulation Developing legal consensus Potential employment claims for website accessibility Discuss steps to reduce exposure, mitigate risk 2

3 Website Accessibility Milestones 1998: Section 508 of the Rehabilitation Act 1999: W3C publishes Web Content Accessibility Guidelines (WCAG) , 2007: Two pro-disability decisions in Target.com litigation (N.D. Cal.) 2008: Target settlement 2008: WCAG : DOJ Advanced Notice of Proposed Rulemaking 2010: Disney Lawsuit 2013: Disney Settlement 2014: Multiple demand letters, lawsuits Feb. 27, 2015: DOJ NPRM on revised Section 508 rules (adopts WCAG 2.0) 3

4 What Is Website Accessibility? Website design that accounts for the different ways that websites can be used by individuals with disabilities Website Content Accessibility Guidelines (WCAG) of World Wide Web Consortium (W3C) WCAG 1.0 (1999), WCAG 2.0 (2008) Section 508 Regulations (Rehabilitation Act) (2003) applicable to government contractors currently under revision 4

5 Who is impacted? Blind Users (using screenreading software) Cannot access undescribed images Cannot navigate by mouse Low Vision Users Color contrast, non-adjustable font or screen size Limited Manual Dexterity Need speech recognition and/or keyboard alternatives Cannot navigate by mouse Deaf or Hard of Hearing Untranscribed audio elements 5

6 Website Accessibility Law: A very brief primer.... Is website a place of public accommodation? Does it need to be? 42 U.S.C (a): No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. (emphasis added) 6

7 Nexus Requirement Has Emerged Where there is a nexus between website and place of public accommodation Examples of clear nexus : Ticket sales to stadiums, arenas, theatres, amusement parks; reservations for hotels; discount coupons for retailers; web specials. 7

8 Do You Even Need a Nexus? 1st Circuit has read place out of statute since Carparts Distribution Center, Inc. v. Automotive Wholesaler's Association of New England, Inc., 37 F.3d 12 (1st Cir. 1994) Nat l Ass n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) (denying MSJ on issue of whether video streaming site is place of public accommodation ) Cf. Cullen v. Netflix, Inc., 2012 U.S. Dist. LEXIS (N.D. Cal. July 13, 2012) (dismissing claim because no nexus to place of public accommodation) State laws e.g., Unruh Act ( business establishment ); Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. (9th Cir. December 10, 2013) (certifying question to Cal. S. Ct.) 8

9 DOJ Announced Intention to Regulate Based on Nexus Requirement ANPRM Fed. Reg (July 26, 2010) broadly asserts coverage under ADA without amendment to statute asserts DOJ position that ADA covers services that are not situated in a particular place asserts intent to regulate seeks input on broad range of 19 questions, including standards (508 vs. WCAG), grace period, etc. 9

10 Federal Government Obligation Section 508 of the Rehabilitation Act (29 U.S.C. 794d) requires the federal government to ensure that electronic and information technology that it develops, procures, maintains or uses is accessible, unless it causes an undue burden. Those who provide federal government with electronic and information technology must do so in an accessible manner. 36 C.F.R NPRM (Feb. 27, 2015) will revise Section 508 Standards. 10

11 Recommendations for Customer-Facing Websites Assess WCAG 2.0 compliance Focus on key parts of website: anything with nexus to physical place open to the public commerce engines (buy-sell, reservations) navigation tools aural content Write or modify contracts with third parties to include WCAG 2.0 compliance 11

12 Recommendations for Customer-Facing Websites (continued) Develop manageable plan to make website accessible over time, including: All new website content should be accessible planned overhaul of entirety of website prioritize key portions of website Monitor and adhere to plan Track ongoing government regulation 12

13 Can Employers Also be Liable? 42 U.S.C (a): No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job applications procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 13

14 Can Employers Also be Liable? Duty to provide reasonable accommodations for the disability of employees (42 U.S.C ) Witthoeft v. Food 4 Less of California, Inc., et al., U.S.D.C. N.D. Cal. Case No. 5:14-cv PSG (filed September 30, 2014) (employment claims for website inaccessibility against 13 retailers) 14

15 Employer Websites Recruiting websites Job application Training/Onboarding 24/7 access to: health insurance information, claims forms, etc. payroll information 401(k) plan information 15

16 Employer Recommendations Focus on mandatory websites or websites that serve as the single road into the company IT controls Establish clear procedures for reasonable accommodation, interactive process Affirmatively seek out requests for reasonable accommodation from deaf, 16 blind employees

17 Questions John G. Lee (Sephora USA) Direct: (415) David Raizman (Ogletree Deakins Los Angeles) Direct: (213) Thank you!! 17