Lawsuits & Settlement Agreements

The Department of Justice (DOJ) is collecting comments on the importance of web accessibility for people across the country who have disabilities. They are focusing on state and local government websites that cover things like voting, emergency preparedness, public schools and other government services. Comments are due on October 7, 2016. For information on when and how to file comments see the blog post on the Law Office of Lainey Feingold website.

Websites can be made more accessible by conforming to the WCAG 2.0 Level AA guidelines put forth by the W3C. For more information on how to conform to these guidelines visit the Service section of the Interactive Accessibility website.

Following the announcement that the regulations for web accessibility proposed by the United States Department of Justice (DOJ) in 2010 under Title II of the Americans with Disabilities Act (ADA) will be further delayed, the National Federation of the Blind (NFB) has condemned the delay. While the rule making has been delayed, many companies and organizations are choosing to conform to the WCAG 2.0 Level AA guidelines for Web Accessibility in advance of the final rule making. 

The U.S. Department of Justice (DOJ) has said that it doesn’t expect regulations for accessibility for non-government websites until 2018. More than five years ago in 2010 the agency released an Advance Notice of Proposed Rulemaking on Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. In summary, the DOJ is considering revising the regulation implementing title III of the Americans with Disabilities Act (ADA) in order to establish requirement for making the goods, services, facilities, privileges, accommodation or advantages offered by public accommodations via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with disabilities.

 In a recent Statement of Regulatory Priorities the DOJ stated that, “The Department is including for disability nondiscrimination rulemaking initiative in its Regulatory plan,” among other things, “Accessibility of Web Information and Services of State and Local Governments.” However, it goes on to state that this and other priorities in the rule making agenda, “will be included in the Departments long-term actions for fiscal years 2017 and 2018.” 

The U.S. Department of Justice (DOJ) has announced a delay in the anticipated regulations regarding web accessibility.  The new target date for Title II (state and local governments) is April, 2016.  The date for private sector web regulations is now to be determined and not likely until 2018.

Even without regulations, however, the Americans with Disabilities Act already requires that web and mobile content, features and functions be accessible. The Department of Justice continues to file complaints and get involved in court actions confirming that digital access is required, and that WCAG 2.0 AA is the standard.  Private sector settlements and lawsuits continue to protect the rights of people with disabilities to fully participate in the digital age. The regulations are delayed.  Site and app owners should not delay in making their digital properties accessible.

Read more on the Law Office of Lainey Feingold’s website

Trying to determine how accessible your campus is can be a daunting task. There are so many business and educational processes to assess, and it will encompass practically every unit within the institution. How do you even begin to determine if you have processes defined and resources allocated to build an accessible IT infrastructure?

One of the recent projects I got to help lead with the EDUCAUSE IT Accessibility Constituent Group was the creation the IT Accessibility Risk Statements and Evidence document. This resource was created by higher education accessibility experts from all over the country to help campus leaders begin to assess where their risks are in their IT accessibility implementations.

Today the U.S. Department of Justice filed “Statements of Interest” in cases against Harvard and MIT filed by the National Association of the Deaf.  The lawsuits allege that the universities failed to caption online video content and that the failure violated the ADA and Section 504 of the Rehabilitation Act. The DOJ documents support NAD’s position.

The universities argued that the court should throw the cases out of court because the ADA and 504 don’t cover websites. The schools also argued that the court should wait for the Title III web regulations. The DOJ couldn’t have written a stronger brief (one in each case).  The ADA already covers websites.  There is no need to wait for regulations. 

This is not the first time the DOJ has reminded us all that the ADA already covers websites, just the most recent.  For other DOJ activity, see the digital access legal update written by Lainey Feingold in March. Another update is coming soon.

DOJ Statement of Interest in MIT case

DOJ Statement of Interest in Harvard case

For $9 a month Scribd subscribers can read unlimited ebook titles. However, District Court Judge William Sessions ruled last Thursday that the ADA Lawsuit filed against Scribd will be moving forward. While the service is popular it is not accessible to people who are blind or have low vision.

Scribd’s argument was: "the ADA does not apply to website operators whose goods or services are not made available at a physical location open to the public.” However, Judge Session disagreed stating, "The fact that the ADA does not include web-based services as a specific example of a public accommodation is irrelevant because such services did not exist when the ADA was passed and because Congress intended the ADA to adapt to changes in technology."

The National Museum of Crime and Punishment entered into a settlement agreement with the Department of Justice (DOJ), which was announced on Tuesday January 13th. The settlement requires that the Museum’s website is remediated to conform to the Web Content Accessibility Guidelines 2.0 (WCAG 2.0) Level AA, which is a set of web accessibility guidelines put forth by the World Wide Web Consortium (W3C.) While the DOJ has not yet formally adopted the WCAG 2.0 Level AA standards, they are the standards named in many recent settlements.

According to the settlement the Museum must conform to the WCAG 2.0 Level AA guidelines within 120 days. This requires that the Museum complete the process of auditing, remediating and verification with in the short time frame.

In an investigation The U.S. Department of Education’s Office for Civil Right (ORC) examined the accessibility of Youngstown State University’s website. OCR determined that the university was not in compliance with two federal laws: Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, and not accessible to people with disabilities.

The University entered into a resolution agreement insuring that its web content will be accessible to individuals with disabilities and providing equal opportunity for these individuals to participate in its online learning platform.

Youngstown State University agreed to:

  • Develop and publish one consistent notice of nondiscrimination that includes contact information for the person(s) designated to ensure compliance with Section 504 and Title II.
  • Develop, adopt and provide notice of a Web accessibility policy and an implementation and remediation plan to ensure adherence to the policy, including particular attention to a prioritized conversion of image-based documents to accessible materials.
  • Provide training to staff responsible for webpage and content development, including faculty and students, as appropriate.
  • Review its website and e-learning platform(s) to identify and fix any accessibility problems, as well as to put in place mechanisms to ensure that the sites continue to be accessible.
  • Provide certification from a third-party web accessibility consultant or an employee of the university with sufficient knowledge, skill and experience that the university’s electronic and information technologies meet the technical standard(s) adopted by the school.
  • Provide OCR with reports describing its efforts for multiple subsequent school years to comply with its Web accessibility policy and plan, including information documenting any compliance issues discovered through the monitoring, audits, or complaints and the actions taken to correct those issues. And,
  • Ensure that access to computer labs, especially regarding provision of assistive technology, is comparable to that of students without disabilities, and that accurate notice is given to students, faculty, staff, and other beneficiaries able to utilize university computer labs that these services are available.

Read the resolution letter and the agreement.

DOJ Enter into Settlement Agreement with Peapod

The Department of Justice (DOJ) Announced on Monday that it has entered into a settlement agreement with America’s leading Internet grocer, Peapod LLC and Ahold U.S.A. Inc. The purpose of the settlement agreement is to remedy alleged violations of the Americans with Disabilities Act (ADA) and resolve the department’s allegations that www.peapod.com is not accessible to some people with disabilities, including individuals who are blind or have low vision; who are deaf or hard of hearing; and who have physical disabilities affecting manual dexterity.

Among the measures Peapod is required to adopt to ensure and equal experience for people with disabilities are:

  • Designate a Web Accessibility Coordinator who will report directly to a Peapod, LLC executive
  • Retain an independent accessibility consultant who will evaluate the accessibility of the website and mobile applications annually
  • Adopt a web accessibility policy
  • Post a notice on the web site asking for feedback from visitors on how accessibility can be improved
  • Provide accessibility testing on the website and mobile applications, both automated and by people with disabilities.
  • Provide mandatory annual training on website accessibility for website content employees.

Read the full settlement agreement press release on the DOJ’s website.

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