ADA Defense Lawyer: New ADA standards for website accessibility

01 January 2015

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ADA Issues on Websites: Department of Justice Poised to Adopt Accessible Website Standards

Since at least 2000, the U.S. Department of Justice (DOJ) has been advocating standardized website development and content to promote access to blind and low vision internet users.  In 2013, the DOJ withdrew its proposed Advanced Notice of Proposed Rule Making (ANPRM) which would have established standardized internet protocols by adopting the Web Content Accessibility Guidelines (WCAG) 2.0.

In 2006, we reported on the landmark case National Federation of the Blind v. Target Corporation, regarding “cyber accessibility” (a term we coined). Target was the first case in which any court ruled that the ADA applied to a retail website. With limited exception, the few courts that had addressed the subject uniformly held that the ADA only applied to brick and mortar architectural barriers, not to internet retail channels (Access Now, Inc. v. Southwest Airlines.)

Target argued that it complied with the ADA because its retail stores were fully compliant and that its website channel was not covered by the ADA standards.  The Court disagreed.  Plaintiffs’ class certification motion was granted.  Target paid a hefty sum and implemented WCAG standards to make its website accessible to blind and low vision customers.  The Target decision was followed with Rendon v. Valleycrest Productions Ltd.  Since Target, the DOJ and other agencies have imposed accessibility requirements for web content and services in Consent Decrees and Settlement Agreements with such industry leaders as Amazon.com, Netflix, H&R Block, Hilton International and others.

Website standards are imminent

The DOJ’s issuance of website standards is not a matter of “if”, but “when.” The regulations will “establish requirements for making goods, services, facilities, privileges, accommodations, or advantages” offered by state and local government agencies and businesses via the Internet, “specifically at sites on the World Wide Web,” accessible to persons with disabilities.

On November 25, 2014, the DOJ Civil Rights Division issued its Advance Notice of Proposed Rule Making entitled “Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.”  These revised regulations, when adopted, will implement web site development standards which the DOJ has been working on for nearly a decade.

The DOJ has solicited public comment on the rules, and the date for announcing the new rules has been extended several times. At this time, announcement for the proposed guidelines for website access for public accommodations has been extended until June 2015.

Guidance on the Accessibility Standards to Websites

The Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C) has developed recognized guidelines for voluntary website accessibility. The WCAG standards will guide software developers to create web content and services which are more accessible to persons with vision-related disabilities.  The current version of the WCAG is the 2.0 with a success factor of either “A”, “AA”, or “AAA”.  The WCAG 2.0 contains 12 standards which each website must meet to conform to the WCAG 2.0 under one of the three “success factors” – A, AA or AAA.

The DOJ believes that the website accessibility standards reach entities that provide ongoing goods and services that fall within the 12 categories of “public accommodations”‘ as defined in the ADA regulations, including by way of example, hotels, financial institutions, shopping centers, retail stores, restaurants, arenas.  The regulations are intended to cover public accommodations that “operate exclusively or through some type of presence on the Web – whether hosting their own website or participating in a host’s website “– and not personal, noncommercial websites or postings.

After new rules are announced, how soon must websites comply?

As of now, there is no effective compliance date. As guidance, the DOJ recently provided an 18-month phase-in period for the 2010 ADA Standards from publication of the final rule.

In the case of websites, the Department noted that it is considering a 6 month effective date for newly designed websites (“those placed online for the first time six months after the publication of the final rule”) and for new pages on existing websites, including navigation components.  For existing websites or pages, the DOJ is considering a 2-year phase-in period from the publication of the final rule.

The proposed comprehensive website guidelines are complex and require professional technical consultation.  Initially, we suggest that businesses conduct self-evaluations to determine whether their websites are accessible, to identify system gaps, and to implement a viable remediation plan.  Since your secrets are only safe with an attorney, we recommend that you retain ADA compliance counsel experienced in cyber accessibility to retain the consultants and guide the process to provide confidential, privileged reports and direction.

JMBM’s ADA Compliance and Defense Group works with the top website compliance firms and we regularly consult with clients on enterprise-wide compliance programs.  Please contact us if you have any questions regarding website ADA compliance.

For more information on our preventative enterprise-wide ADA compliance program . . .

Too often we see property owners and managers get “stuck” on a single element of ADA compliance, whether that is pool lifts or web access. Don’t focus on any single element. The best approach to avoiding an ADA lawsuit is to conduct an ADA compliance and prevention survey of your business. The survey should include an assessment of the following:

• Physical facilities — the brick and mortar
• Written ADA policies, practices and procedures manual
• Reservation system compliance with best practices
• Website accessibility for blind and low-vision guests
• Staff training and competency on using auxiliary aids and services for persons with disabilities (audio and visual)
• Call center and operator training and compliance to accept the many types of Telecommunication Relay Services (TRS) used by deaf, hard of hearing and speech impaired guests and potential guests. (The U.S. Department of Justice has been particularly aggressive when it comes to enforcing hotel policies, practices and procedures regarding the effective use of TRS.)

Subpar performance on any one of these elements could mean trouble in an ADA suit.

The survey should be done under representation of an attorney, which will give the results of the survey protection under attorney-client privilege.

For more information on our enterprise-wide ADA compliance program, please contact us:

Jim Butler
Chairman, Global Hospitality Group®
jbutler@jmbm.com
(310) 201-3526

Marty Orlick
Senior Member, Global Hospitality Group®
Chairman, ADA Defense Team
morlick@jmbm.com
(415) 984-9667

Other ADA defense and compliance resources

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Jim Butler is a founding partner of JMBM, and the founder and chairman of JMBM’s Global Hospitality Group® and Chinese Investment Group®. He is recognized as one of the top hotel lawyers in the world and has authored or co-authored The HMA & Franchise Agreement Handbook, How to Buy a Hotel Handbook, and The Lenders Handbook. Jim has led the Global Hospitality Group® in more than $87 billion of hotel transactional experience, involving more than 3,900 hotel properties located around the globe. Jim’s team has worked on more than 60 EB-5 projects over the past three years. 310.201-3526 or jbutler@jmbm.com

This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We’ve done more than $87 billion of hotel transactions and have developed innovative solutions to unlock value from hotels. Who’s your hotel lawyer?

Our Perspective. We represent hotel owners, developers and investors. We have helped our clients find business and legal solutions for more than $125 billion of hotel transactions, involving more than 4,700 properties all over the world. For more information, please contact Jim Butler at jbutler@jmbm.com or +1 (310) 201-3526. Jim Butler is a founding partner of JMBM, and Chairman of its Global Hospitality Group® and Chinese Investment Group®. Jim is one of the top hospitality attorneys in the world. GOOGLE “hotel lawyer” and you will see why. Jim and his team are more than “just” great hotel lawyers. They are also hospitality consultants and business advisors. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them.