WEBSITE ACCESSIBILITY LEGAL REQUIREMENTS AND PRACTICAL CONSIDERATIONS - - PDF document

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WEBSITE ACCESSIBILITY LEGAL REQUIREMENTS AND PRACTICAL CONSIDERATIONS

PRESENTED BY Tara L. Moffett, Partner Girvin & Ferlazzo, P.C. 20 Corporate Woods Blvd Albany, NY 12211 ph: 518‐462‐0300 tlm@girvinlaw.com

Why is This a Hot Issue?

• Civil Rights‐Compliance with Federal Mandates

Prohibiting Discrimination on the Basis of Disability

• Increasing use of Websites and On‐line Services by

Districts

• Internet may serve as the new “public forum”
• Lawsuits and Accessibility Challenges are on the Rise
• Increasing numbers of OCR investigations and

Resolution Agreements for Website Accessibility Compliance

• Technology Advances and Universal Design Principles
• Decreasing Costs of Accessibility Features

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Websites Serve as the District’s Point

• f Distribution for Public Information
• Government and public agencies, including public schools,

frequently use websites as a means of distributing information and allowing individuals to access programs and services on a 24 hours a day, 7 days a week schedule, offering flexibility for individuals who are unable to go to the offices during typical business hours. – Public notices‐ many laws (state and federal) allow Districts to use their website to publicize information, including policies, required reports, guidance and systems

• information. (DASA, FERPA, IDEA, Title IX, Title VII, etc.)

Websites Serve as the District’s Point

• f Distribution for Public Information

– Parent/Teacher communication‐ frequently Districts are using a school interface to allow parents to access information about student’s grades, attendance, assignments and other work. – Food Service Programs‐ frequently use on‐line account services to initiate services, replenish funds, pre‐pay, or monitor student expenditures. – Forms, Calendars, Schedules, Contact information and

• ther Resources are frequently accessible through a

District’s website. – On‐line coursework, programs, resources and materials – Registration and Enrollment in clubs, activities and fees

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• Making

sure that Individuals with a range

• f

disabilities are able to access the information and features of the website.

• Accessibility may be achieved through a variety of

means, such as

• Accessible plug‐ins
• Using Text files instead of PDF or graphic based programs
• Captioning or Descriptions for Graphics or Videos
• Text which can be manipulated (enlarged, change the

contrast, change the font)

• Alternate navigation features‐ such as accessibility using a

keyboard vs. mouse (for individuals with motor disabilities

• r visual impairments)

This is not an exhaustive list.

What is Website Accessibility?

Website Design is Critical to Ensuring Accessibility

• Poorly designed websites can create unnecessary barriers to access online

programs and services for individuals with disabilities

• Website designers need to recognize that not everyone sees and accesses

a website in the same way

• Website design must recognize the need to provide access without

requiring people to see, hear or use a standard mouse in order to access information and services provided.

• Websites need to be accessible to certain assistive technology systems or

software, such as screen readers, text enlargement software and programs which allow voice operations, or adjust color schemes, contrast setting and font sizes, to name a few.

• All new and modified webpages and content also need to be monitored

for accessibility.

• Keep in mind that ANYONE who adds content to website must be

considering accessibility features (including on teacher webpages)

• Obligation to make information accessible is proactive, not reactive

***If you are updating or modifying your website‐ make sure to consider Accessibility issues as part of the design protocol***

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What Are the US Standards?

• To Be Determined‐ On April 28, 2016, the Department
• f Justice (DOH) withdrew its Notice Of Proposed

Rulemaking‐ Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities, (which had been submitted on July 9, 2014),

• Simultaneously, the DOJ issued a Supplemental

Advanced Notice of Proposed Rulemaking‐(same title above) which sought additional public comment and input in light of changes to the Internet, accessibility tools and assistive technology since the original announcement in 2010.

Where Else Can We Look To For Guidance?

International Standards‐ which are referenced in guidance documents are the best source: – WCAG 2.0 (Web Content Accessibility Guidelines)

• Four guiding principles‐ perceivable, operable,

understandable and robust (aka “POUR guidelines”)

– WAI‐ARIA (Web Accessibility Initiative Accessible Rich Internet Applications Suite)

• A set of tools designed to improve website

functionality, to make web content and web applications more accessible to people with disabilities

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Relevant Laws and Regulations

• Americans with Disabilities Act – Title II

provides that “no qualified individual with a disability, shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs or activities

• f a public entity. 42 U.S.C. §12132

Relevant Laws and Regulations

• Title II Implementing Regulations‐ A public entity shall:

– Take appropriate steps to ensure that communication…[with individuals with disabilities] are as effective as communications with others. 28 C.F.R. §35.160(a)(1) – Furnish appropriate auxiliary aids and services where necessary…28 C.F.R. §35.160(b)(1) – In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. 28 C.F.R. §35.160(b)(2)

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Relevant Laws and Regulations

• Determine the type of auxiliary aid or service necessary to

ensure effective communication, recognizing that it may vary in accordance with the method of communication used by the individual; the nature, length and complexity

• f the communication involved; and the context in which

communication takes place. Primary consideration should be given to the requests of the individual with disabilities. 28 C.R.R. §35.160(b)(2)

• This subpart does not require a public entity to take any

action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or result in undue financial and administrative burdens. 28 C.F.R. §35.164

Relevant Laws and Regulations

• Section 504 of the Rehabilitation Act‐ protects the rights of

individuals with disabilities to access and participate in programs and activities which are federally funded. “[N]o

• therwise qualified individual with a disability…shall, solely

by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance…” 29 U.S.C. §794(a).

• Section 504’s Implementing Regulations‐ prohibit public

entities from discriminating on the basis of disability in any program or activity which is federally funded. The regulations prohibit conduct which would interfere with an equal opportunity to participate in or benefit from an aid, benefit or service provided by the public entity. 35 C.F.R. §104.4

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Relevant Laws and Regulations

• No qualified person shall, be excluded from participation in, denied the

benefits of, or otherwise be subjected to discrimination under any program

• r activity which receives Federal financial assistance. 34 C.F.R. §104.4(a)
• A recipient, in providing any aid, benefit or service, may not, directly or

through contractual licensing or other arrangements, on the basis of disability:

– Deny a qualified person the opportunity to participate in or benefit from the aid, benefit or service; – Afford a qualified person an opportunity to participate in or benefit from the aid, benefit or service that is not equal to that afforded to others (aka equal

• pportunity);

– Provide a qualified person with an aide, benefit or service that is not as effective as that provided to others; – Provide different or separate aid, benefits or services to persons of any class of persons unless such action is necessary to provide qualified persons with aid, benefits, or services that are as effective as those provided to others. 34 C.F.R. §104.4(b)

Relevant Laws and Regulations

• For purposes of this part, aides, benefits, and services,

to be equally effective, are not required to produce the identical result or level of achievement for [disabled] and [nondisabled] persons, but must afford [disabled] persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs. 34 C.F.R. §104.4(b)(2)

• Section 504’s implementing regulations do not address

“website accessibility”, rather they address accessibility related to the facilities and methods used to make facilities accessible.

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Links to Third Party Web Content

• Title II of the ADA prohibits discrimination in the

provision of any aid, benefit or service provided by public entities directly or through contractual, licensing, or other arrangements (28 CFR 35.130(b)(1))‐ 504 has similar provisions

– If a District uses a third party website for services (such as a food services account to allow payments or credits)‐ the District could liable to ensure accessibility to the third‐ party’s website and web components.

• If the link is for informational or resources purposes only, the

District may not be required to ensure accessibility.

– OCR has not recognized this argument in recent Resolution Agreements

– Best practice is to ensure that any third party vendor you use should has an accessible website.

Department of Education Guidance

• “Dear Colleague” Letter: Electronic Book

Readers (E‐Readers)(June 29, 2010) available at: https://www2.ed.gov/about/offices/list/ocr/lette rs/colleague‐20100629.pdf

– Addressed using electronic book readers which were not accessible to students who were blind or had low vision, citing such practices as discrimination in violation of the ADA and Section 504. – Directed colleges and universities to ensure that only emerging technology which was accessible to all students, including those who are blind or had low vision, would be used.

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Department of Education Guidance

• “Dear Colleague” letter – follow‐up May 2011 Guidance

Letter https://ed.gov/about/offices/list/ocr/letters/colleague‐ 201105‐ese.html and FAQ about June 29, 2010 Dear Colleague Letter‐ https://www2.ed.gov/about/offices/list/ocr/docs/dcl‐ebook‐ faq‐201105.pdf

– Clarified that the guidance applied to elementary and secondary schools, and set forth a variety of frequently asked questions and answers for further assistance. – Made it clear that the guidance applied beyond electronic book readers to other forms of emerging technology. – Encouraged schools to employ innovative learning tools and emerging technology, but reminds them that equal access must be considered as technology is integrated into the educational environment. – Schools should focus on immediate delivery of accessible devices or

• ther technology necessary to ensure accessibility from the outset.

Department of Justice Guidance

• Accessibility of State and Local Government Websites to

People with Disabilities‐ Technical Assistance document issued in 2003, references the WCAG guidelines https://www.ada.gov/websites2.htm

– DOJ issued advanced notice of proposed rulemaking in 2010 to update the original 2003 guidance. – As a result of commentary and response, DOJ decided to revisit the guidance on Titles II and III of the ADA.

• April 29, 2016‐ DOJ Supplemental Advanced Notice of

Proposed Rulemaking (simultaneously withdraws the updating comments from 2010, to update the original Accessibility Technical Assistance Document‐ includes info from original NPRM from ) https://www.ada.gov/regs2016/sanprm.html

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OCR Resolutions on Website Accessibility

• Utica Community Schools – OCR Docket # 15‐16‐1465, signed

12/5/2016

https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/15161465‐ b.pdf

• District launched a new website on 9/1/2016 and agreed to

address website accessibility by

– Identifying and adopting a technical standard for assessing whether online content is accessible – Develop a Web Accessibility Policy and designate a Web Accessibility Coordinator and provide them resources and authority to coordinate and implement the Web Accessibility Policy – Provide a procedure to ensure that online content and information obtained through content provided or developed by third parties is accessible. – Provide bi‐annual training for staff responsible for creating or distributing online content to students, employees, guests, and visitors with disabilities. – Inform students, employees, guests and visitors that they may report perceived or alleged violations through formal complaint process and/or by contacting the Web Accessibility Coordinator – Provide for an internal accessibility Audit, conducted at regular intervals, to measure accessibility of online content against the technical standards in the Web Accessibility Policy, and remedy any issues within a reasonable period of time.

OCR Resolutions on Website Accessibility

• Guam Department of Education‐ OCR Ref. No. 10161098‐ signed

6/27/2016‐ https://www2.ed.gov/about/offices/list/ocr/docs/investigations/m

• re/10161098‐b.pdf

– Guam DOE agrees to comply with WCAG 2.0 Level AA guidelines for accessibility and the WIA‐ARIA guidelines for web content

• Will undertake an audit, and submit the report and a corrective action plan to

OCR for review and approval

– Requires accessibility of all online content and functionality, including content developed, maintained or offered through a third‐party vendor or through the use of open sources – Provide access to webmaster or others who can provide access to information if there is accessibility issue with website content – Provide training to staff to ensure that all personnel, including content developers, webmasters, procurement officials and others responsible for developing, loading, maintaining, or auditing web content and functionality, understand the obligations to ensure accessibility.

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OCR Resolutions on Website Accessibility

• Oregon Department of Education‐ OCR Ref.
• No. 10161102 – signed 6/16/2016

https://www2.ed.gov/about/offices/list/ocr/d

• cs/investigations/more/10161102‐b.pdf

– Oregon DOE agreed to address barriers to the website which made it inaccessible, create a request page to access content which is still inaccessible, and provide training to employees

DOJ’s UC Berkley Determination

Letter of Findings and Conclusions‐ August 30, 2016

https://www.ada.gov/briefs/uc_berkley_lof.pdf

• DOJ received a complaint from individuals unaffiliated with the

University who sought to access the online content and found it inaccessible to individuals with hearing, vision and manual disabilities

– UC Berkley posted free audio and video content to the public through their YouTube channel, iTunes U and Massive Open Online Courses (MOOCs) and edX learning management platform (UCBerkleyX).

• DOJ focused on accessibility of the content it offered the public, not
• n how the school serves students with disabilities.
• The letter of findings:

– Directed Berkley to develop and implement procedures to make all content on all platforms accessible pursuant to Title II of the ADA (including content which was provided free of charge) – Required Berkley to develop a plan for soliciting feedback on accessibility – Ordered Berkley to pay damages to the complainants

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UC Berkley’s Response To DOJ Letter and Order

• Effective March 15, 2017, Berkley began removing

more than 20,000 files (audio and video files, including recorded lectures and course materials)

• For access to on‐line content, users must sign‐in with

UC Berkley credentials to view, listen, or access materials or information

• Berkley’s Vice Chancellor stated that “In many cases,

the costs associated with meeting the requirements would impose extremely expensive measures to continue to make the resources available to the public for free.. And in light of budget deficits and shrinking state financial support, their focus must be on supporting enrolled students.”

OCR’s New Investigative Direction‐

• June 2, 2017‐ NYSASA Conference‐ Acting Assistant Attorney General Tom

Wheeler for the Justice Department’s Civil Rights Division

– Suggested that the current Administration is looking to change some of the investigation processes followed by OCR, focusing more on the specific complaint, tailoring the investigation accordingly.

• June 8, 2017 OCR’s Acting Assistant Secretary for Civil Rights, Candice

Jackson, issued an internal memo to all OCR directors

• https://assets.documentcloud.org/documents/3863019/doc00742420170

609111824.pdf

• Specific changes

– Eliminates the “one size fits all investigative process”

• No longer requires a an automatic three year data request to assess school’s compliance

– Each investigative team will decide the type and amount of data necessary to support its investigation – Applies to current and future investigations

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Current Case Law on Website Accessibility

• National Association of the Deaf v. Harvard University

2016 WL 3561622 (D. Mass. Feb 9, 2016), report and recommendation adopted, No. CV 15‐30023‐MGM, 2016 WL 6540446 (D.Mass. Nov. 3, 2016).

– Plaintiffs alleged that Harvard discriminated against deaf or hard

• f hearing individuals by failing to provide auxiliary aids and

services (captioning) to ensure effective communication and equal access to audiovisual content, under the ADA and Section 504 and requested injunctive relief requiring .

• Harvard was providing a free service‐ access to online video content to

the public.

• Harvard argued (unsuccessfully) that the ADA Accessibility Guidelines

for Buildings and Facilities (ADAAG) which contain no website accessibility requirements, should apply.

• Harvard’s bid to defer action until the DOJ finalized its Notice of

Proposed Rulemaking for website operated by state and local government entities (anticipated sometime in 2018, at the earliest) was rejected.

Current Case Law on Website Accessibility

National Ass’n of the Deaf v. Harvard Univ., cont’d. – The Court recognized the Department of Education’s guidance (in the Dear Colleague Letter on E‐readers and the 2011 FAQ guidance) are “significant guidance documents” reflecting the agency’s fair and considered judgment, and are entitled to some deference. – The Court denied injunctive relief requested by Plaintiffs, and denied Harvard’s request to stay or dismiss the action.

• The Court indicated that IF Harvard choses to make videos

accessible to the general public, it cannot discriminate against the deaf and hard of hearing individuals in the “full and equal enjoyment” of that service. 42 USC §12182(a) (emphasis mine)

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Current Case Law on Website Accessibility

• Title III‐ Kidwell v. Florida Commission on Human

Relations and SeaWorld Entertainment, Inc., 2017 WL 176897 (M.D. Fla., Jan. 17, 2017)

– Individual with a disability sued SeaWorld, alleging violation of Title III of the ADA due to the internet website’s lack of accessibility, among other accessibility claims. – Court ruled that the Plaintiff may not claim a violation

• f Title III based on an internet website’s accessibility

as the plaintiff could not demonstrate that the website’s inaccessibility prevented his access to a specific, physical concrete space.

Current Case Law on Website Accessibility

Kidwell Case “Neither Busch Gardens’ nor SeaWorld's online website is a physical or public accommodation under the

• ADA. Access Now, Inc., v. SW Airlines, Co., 227 F.Supp 2d

1312, 1321 (S.D. Fla 2002). “[T]he internet is a unique medium‐ known to its users as ‘cyberspace’ – located in no particular geographical location but available to anyone, anywhere in the world with access to the internet.” (see Id., internal quotation marks omitted). Hence, Plaintiff is unable to demonstrate that either Busch Gardens’ or SeaWorld's online website prevents his access to “a specific, physical, concrete space such as a particular airline ticket counter or travel agency.” (see Id.) As a result, Plaintiff may not plead a claim based on accessibility of an online website under Title III of the ADA.” (emphasis mine)

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Current Case Law on Website Accessibility

• Gil v. Winn‐Dixie Stores, Inc. 2017 WL 2547242 (S.D.

Fla, June 12, 2017)

– Visually impaired patron brought action against grocery chain alleging violations of ADA based on website inaccessibility using his screen reader and other technologies.

• The Court concluded that it did not need to decide if

the website is a public accommodation in and of itself, given the website’s heavy integration with the physical store locations and services connected through that site (such as the online pharmacy management system, access to digital coupons that link to the customer’s reward cards, and the ability to find store locations)

Current Case Law on Website Accessibility

Gil v. Winn‐Dixie cont’d.

• The ADA does not merely require physical access to a place
• f public accommodation. Rather, the ADA requires that

disabled individuals be provided “full and equal enjoyment

• f the goods, services, facilities, privileges, advantages or

accommodations of any place of public accommodation…” 42 U.S.C. §12182(a)

• Winn Dixie website was created in September 2015 for $2

million, and updated the site in 2017 to include a new rewards program at the cost of $7 million, but no effort was made to make the website accessible.

– The Court found “whether the cost to modify the website is $250,000 or $37,000 is of no moment. Though the higher cost seems high, it pales in comparison to the $2 million Winn‐Dixie spent in 2015 to open the website and the $7 million it spent in 2016 (sic) to update it for the Plenti program.”

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Current Case Law on Website Accessibility

Gil v. Winn‐Dixie cont’d.

• The Court also found the fact that third party

vendors operate certain parts of the Winn‐Dixie website is not a legal impediment to the

• bligation to make the website accessible to the

disabled.

– “First, many, if not most, of the third party vendors may already be accessible to the disabled, and if not, Winn‐Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn‐Dixie website.” (Emphasis mine)

Where Can I Find More Information About Web Accessibility?

• www.ada.gov has a ADA Best Practices Tool Kit for State and Local

Governments https://www.ada.gov/pcatoolkit/toolkitmain.htm – Website Accessibility Under Title II of the ADA (Chapter 5)

• https://www.ada.gov/pcatoolkit/chap5toolkit.htm
• Web Content Accessibility Guidelines (WCAG) 2.0

http://www.w3.org/TR/WCAG/#glossary highlights POUR focus and provides 12 guidelines with examples on making content more accessible to users with different disabilities.

• WebAIM (Web Accessibility in Mind) –http://webaim.org/ a not for

profit organization which offers tools and checklists to check for website accessibility, including WAVE http://wave.webaim.org/ which is an informal evaluation tool which can offer immediate feedback on accessibility issues.

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Accessibility Best Practices

• Add a text equivalent to every image using a HTLM “alt” tag
• r a description (“longdesc”) tag for each graphic. The

description should provide a text equivalent of the image.

– If images are used, including photos, graphics, scanned images,

• r image maps, include a text equivalent, by adding “alt” tags or

long descriptions, for each. – If you use online forms and tables, make sure that those elements are accessible by labeling each control (including buttons, check boxes, drop‐down menus, and text fields) with a descriptive HTML tag.

• Post documents in Text‐based format (Such as HTML, or

RTF (Rich Text Format)), even if you are also providing in another format, such as PDF.

• Avoid Dictating Colors and Font Settings‐ the website

design should allow others to adjust the color and font sizes set in the users web browsers and operating systems.

Accessibility Best Practices

• Include Audio Descriptions and Captions‐ make

sure to include descriptions of changes in setting, gestures and other details, and provided captions synchronized with the video image and audio tracks.

• Include “skip navigation” link to allow individuals

using screen readers to bypass navigation links and go directly to webpage content

• Minimize blinking, flashing or moving features, or

have a “stop” or “pause” feature.

• Use titles, context and other heading structures

to help users navigate complex pages or elements