Website Access for the Blind: the Development of WCAG and Related ADA-based Litigation

1. Website Access for the Blind: the Development of WCAG and Related ADA-based Litigation June 26, 2019Presented By: Robert Floyed III John MacDonald Constangy, Brooks, Smith & Prophete, LLP

2. Goals • Understand the need for WCAG • Learn about the development of WCAG for website accessibility • Learn about current DOJ actions regarding WCAG • Review recent web accessibility case law • Review basics of WCAG 2.0 and 2.1 • Review some practice suggestions

3. Appreciate that the blind (and hearing impaired) need web access at least as much, if not more than the non-impaired “Usability” trumps “accessibility” Shopping, banking and work A few thoughts from a conversation with James A. Kutsch, Ph.D., President and Chief Executive Officer of the Seeing Eye regarding importance of web access to the sight impaired. Understanding the Need

4. The Developing Response to the Need • 1994-1995 Vanderheiden Guidelines (Univ. Wisconsin) • 1997 W3C’s creation of the WAI • 2000 WCAG1.0 published • 2008 WCAG 2.0 • 2018 WCAG 2.1 • 20__ WCAG 3.0?

5. Basis of ADA Applicability to Website Access • Titles II and III • 42 U.S.C. § 12182(b)(2)(A)(iii) • Covered entities required to provide auxiliary aids and services to ensure that individuals with disabilities are not excluded from accessing the services of a “place of public accommodation.”

6. Current DOL Position Regarding WCAG Applicability to ADA Claims • 2017 – DOJ places proposed Title II Rulemaking for WCAG on “inactive” status • 2018 DOJ letter acknowledges ADA coverage but rejects WCAG as per se standard

7. Recent Web Access Case Law • Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. January 15, 2019) • Access Now, Inc. v. Blue Apron, LLC, (2017 WL 5186354) (D. NH) • Castillo v. Jo-Ann Stores, 286 F.Supp. 3d 870 (N.D. Ohio, 2018) • Gill v. Winn-Dixie Stores, Inc., 257 F.Supp.3d 1340 (S.D. Florida, 2017) • Diaz v. Kroger, (June 4, 2019 WL 2357531) (SDNY)

8. WCAG 2.0 Guidance Levels • Principles – • Perceivable • Provide text alternatives to non-text, time-based media, content presentable in multiple ways and easier to see/hear. • Operable • Keyboard functionality, reasonable time to absorb content, easy navigation, non-seizure producing content • Understandable • Content that is readable, predictable and correctable • Robust • Content can be interpreted by variety of users including assistive technologies.

9. WCAG 2.0 Guidance Levels (cont.) • Guidelines • 13 guidelines provide a non-testable framework and objects against which to measure success criteria

10. WCAG 2.0 Guidance Levels (cont.) • Success criteria • Must relate to: • An important access issue for disabled people • Testable • Three levels of compliance (A - lowest), (AA) and (AAA – the highest) • Compliance levels determined by • Whether criteria is essential • Whether the criteria can be met across all sites/content • Whether the criteria requires skills that can be reasonably achieved by the content creators (requiring less than a week’s training) • Whether the criteria imposes limits on “look and feel” and/or functionality of webpage • Whether there are no available work-arounds if the criteria is not met

11. WCAG 2.1 • Backwards compatibility with WCAG 2.0 • Intended as a bridge to WCAG 3.0 • Intended goal to improve accessibility for: • Users with cognitive or learning disabilities • Users with low vision • Users with disabilities using mobile devices • New features • Adds new, updated success criteria and provides related guidelines

12. WCAG’s Future and Related Practice Pointers • WCAG will most likely become the per se standard in the near future • WCAG 3.0 is expected soon • If you aren’t certain of your company’s compliance with 2.0, various third party vendors are available to review your site • Insist that your website developers are building WCAG compliant content. • Practical responses to class action complaint and related “war stories”

13. QUESTIONS