Our colleague  at Epstein Becker Green has a post on the Retail Labor and Employment Law blog that will be of interest to our readers in the financial services industry: “DOJ Finally Chimes In On State of the Website Accessibility Legal Landscape – But Did Anything Really Change?

Following is an excerpt:

As those of you who have followed my thoughts on the state of the website accessibility legal landscape over the years are well aware, businesses in all industries continue to face an onslaught of demand letters and state and federal court lawsuits (often on multiple occasions, at times in the same jurisdiction) based on the concept that a business’ website is inaccessible to individuals with disabilities.  One of the primary reasons for this unfortunate situation is the lack of regulations or other guidance from the U.S. Department of Justice (DOJ) which withdrew long-pending private sector website accessibility regulations late last year.  Finally, after multiple requests this summer from bi-partisan factions of Members Congress, DOJ’s Office of Legislative Affairs recently issued a statement clarifying DOJ’s current position on website accessibility.  Unfortunately, for those hoping that DOJ’s word would radically alter the playing field and stem the endless tide of litigations, the substance of DOJ’s response makes that highly unlikely.

DOJ’s long-awaited commentary makes two key points…

Read the full post here.

Our colleague  at Epstein Becker Green has a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers in the financial services industry: “The Generally Prevailing Website Accessibility Guidelines Have Been Refreshed – It’s Time to Officially Welcome WCAG 2.1.”

Following is an excerpt:

After nearly ten years, on Tuesday, June 5, 2018, the World Wide Web Consortium (the “W3C”), the private organization focused on enhancing online user experiences, published the long awaited update to its Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”), known as the WCAG 2.1.  Those who have been following along with website accessibility’s ever-evolving legal landscape are well aware that, despite not having been formally adopted by regulators for the vast majority of the private sector, compliance with WCAG 2.0 at Levels A and AA has become the de facto baseline for government regulators, courts, advocacy groups, and private plaintiffs when discussing what it means to have an accessible website. …

Read the full post here.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the financial services industry: “Nation’s First Website Accessibility ADA Trial Verdict Is In and It’s Not Good for Places of Public Accommodation.”

Following is an excerpt:

After years of ongoing and frequent developments on the website accessibility front, we now finally have – what is generally believed to be – the very first post-trial ADA verdict regarding website accessibility.  In deciding Juan Carlos Gil vs. Winn-Dixie Stores, Inc. (Civil Action No. 16-23020-Civ-Scola) – a matter in which Winn-Dixie first made an unsuccessful motion to dismiss the case (prompting the U.S. Department of Justice (“DOJ”) to file a Statement of Interest) – U.S. District Judge Robert N. Scola, Jr. of the Southern District of Florida issued a Verdict and Order ruling in favor of serial Plaintiff, Juan Carlos Gil, holding that Winn-Dixie violated Title III of the ADA (“Title III”) by not providing an accessible public website and, thus, not providing individuals with disabilities with “full and equal enjoyment.”

Judge Scola based his decision on the fact that Winn-Dixie’s website, “is heavily integrated with Winn-Dixie’s physical store locations” that are clearly places of public accommodation covered by Title III and, “operates as a gateway to the physical store locations” (e.g., by providing coupons and a store locator and allowing customers to refill prescriptions). …

Read the full post here.

Our colleagues Joshua Stein, co-chair of Epstein Becker Green’s ADA and Public Accommodations Group, and Stephen Strobach, Accessibility Specialist, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the financial services industry:  “DOJ Refreshes Its Efforts to Promulgate Title II Website Accessibility Regulations and Other Accessible Technology Updates – What Does It All Suggest for Businesses?”

Following is an excerpt:

On April 28, 2016, the U.S. Department of Justice, Civil Rights Division, withdrew its Notice of Proposed Rulemaking (NPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  This original initiative, which was commenced at the 20th Anniversary of the ADA in 2010, was expected to result in a final NPRM setting forth website accessibility regulations for state and local government entities later this year. Instead, citing a need to address the evolution and enhancement of technology (both with respect to web design and assistive technology for individuals with disabilities) and to collect more information on the costs and benefits associated with making websites accessible, DOJ “refreshed” its regulatory process and, instead, on May 9, 2016, published a Supplemental Notice of Proposed Rulemaking (SNPRM) in the federal register. …

The questions posed in the SNPRM indicate that DOJ is considering many of the issues that Title III businesses have been forced to grapple with on their own in the face of the recent wave of website accessibility demand letters and lawsuits commenced on behalf of private plaintiffs and advocacy groups.  It would be a positive development for any eventual government regulations to clearly speak to these issues.  Conversely, it may be even longer before we see final regulations for Title III entities. …

While most current settlement agreements regarding website accessibility focus on desktop websites, many businesses are anticipating that the next target for plaintiffs and advocacy groups will be their mobile websites and applications.  Such concern is well founded as recent DOJ settlement agreements addressing accessible technology have included modifications to both desktop websites and mobile applications.

Read the full post here.

Our colleague Joshua A. Stein has a Retail Labor and Employment Law Blog post that will be of interest to many of our financial services industry readers: “Defending Against Website Accessibility Claims: Recent Decisions Suggest the Primary Jurisdiction Doctrine Is Unlikely to Serve As Businesses’ Silver Bullet.”

Following is an excerpt:

For businesses hoping to identify an avenue to quickly and definitively defeat the recent deluge of website accessibility claims brought by industrious plaintiff’s firms, advocacy groups, and government regulators in the initial stages of litigation, recent news out of the District of Massachusetts – rejecting technical/jurisdictional arguments raised by Harvard University and the Massachusetts Institute of Technology – provides the latest roadblock. …

These recent decisions reveal a reluctance among the courts to dismiss website accessibility actions on technical/jurisdictional grounds.  Taken along with the expanding number of jurisdictions who subscribe to legal theories accepting that Title III covers website accessibility (whether adopting a nexus theory or broadly interpreting the spirit and purpose of the ADA) and it is becoming increasingly clear that many businesses will have a difficult time ridding themselves of website accessibility claims in the early stages of litigation.  Of course, these decisions have been quick to note they do not foreclose a variety of potentially successful defenses that may be asserted later in the litigation – e.g., undue burden, fundamental alteration, and the provision of equivalent/alternative means of access.  While, to date, the existing website accessibility case law has not focused on when these defenses might prevail, with the recent proliferation of website accessibility demand letters and litigation, businesses should soon find themselves with greater guidance from the courts.  In the interim, the best way to guard against potential website accessibility claims continues to be to take prophylactic measures to address compliance before you receive a demand letter, complaint, or notice of investigation.

Read the full post here.

My colleague Joshua A. Stein at Epstein Becker Green has a Hospitality Labor and Employment Law blog post that will be of interest to many of our readers: “DOJ Further Delays Release of Highly Anticipated Proposed Website Accessibility Regulations for Public Accommodations.”

Following is an excerpt:

For those who have been eagerly anticipating the release of the U.S. Department of Justice’s proposed website accessibility regulations for public keyboard-4x3_jpgaccommodations under Title III of the ADA (the “Public Accommodation Website Regulations”), the wait just got even longer.  The recently released Spring 2015 Unified Agenda of Federal Regulatory and Deregulatory Actions reveals that DOJ’s Public Accommodation Website Regulations are now not expected until April 2016.  This delay moves back the release date nearly a year from what most had previously anticipated; this summer in advance of July’s 25th Anniversary of the ADA.  While there was no public statement explaining the release, most insiders believe it has to do with the difficulty of appropriately quantifying the costs and benefits of complying with any promulgated regulations – a necessary step by DOJ for such a rulemaking.

Read the full original post here.

While 2014 was certainly a noteworthy year under Title III of the Americans with Disabilities Act (“Title III”), July 26, 2015, will mark the 25th anniversary of the ADA (“25th Anniversary”), an event that will almost certainly be celebrated with significant developments impacting the scope of Title III’s coverage. The U.S. Department of Justice (“DOJ”), charged with regulating Title III, is expected to advance and finalize regulations affecting a variety of industries, including, in some instances, financial services. Additionally, it would be reasonable to expect advocacy groups and plaintiffs—buoyed by these looming developments and emboldened by the 25th Anniversary—to continue the path followed over the past year, aggressively pursuing an expansive interpretation of Title III in “cooperative” agreements and litigation.

Contemplating what lies ahead is best done in tandem with an eye towards the year that was. While the year 2014 saw a variety of developments under Title III which targeted specific industries, one – relating to website accessibility – had potentially broader implications arguably impacting any entity covered by Title III, including financial services.

Website Accessibility

Over the past decade, website accessibility has become one, if not the most, prominent issue under Title III, as regulatory agencies at both the state and federal level and experienced advocacy groups have challenged the inaccessibility of websites under Title III and related state and local accessibility laws with increasing frequency. The legal landscape regarding this issue remains conflicted as courts have split over the issue of whether the term “Places of Public Accommodation” applies to websites and, if so, to what extent.

Generally, the division among courts has created three lines of thought: (i) the ADA must be read broadly to successfully achieve its purpose, allowing individuals with disabilities to fully and equally participate in society and, therefore, websites must be made accessible under Title III; (ii) the ADA must be read as it is written and, because “Places of Public Accommodation” are plainly defined with an extensive list of solely physical locations, the ADA must be amended, or new regulations promulgated, before Title III can apply to websites; and (iii) Title III applies to websites of Places of Public Accommodation to the extent there is a nexus between the goods and services provided by the brick-and-mortar Place of Public Accommodation and the website.

Notwithstanding this tension among the courts, DOJ—relying upon Title III’s overarching “full and equal enjoyment” obligation—has long taken a strident position that Title III, as currently drafted, unquestionably applies to the websites of Places of Public Accommodation. In addition, to further strengthen its position and to remove ambiguity about what constitutes an accessible website under Title III, since the summer of 2010, DOJ has been taking the steps necessary to promulgate regulations specifically addressing the requirements for website accessibility for public accommodations. At the time of this writing, the most recent estimates project that the next step in this rulemaking will occur this summer, shortly before the 25th Anniversary.

Separately, the U.S. Access Board continues to work on promulgating a revised version of Section 508 of the Rehabilitation Act of 1973, which addresses, among other accessible information and technology, website accessibility for federal agencies and the contractors of federal agencies in certain specific contexts. At the time of this writing, the most recent estimates project the next step in this rulemaking to occur sometime in early 2015. Previously, in December 2013, the U.S. Department of Transportation issued an amendment to the Air Carrier Access Act of 1986 (“ACAA”) placing accessibility obligations on public-facing websites of covered airlines and airports. 49 U.S.C. §41705; 14 C.F.R. Part 382.

Despite the fluid state of this issue on both the judicial and regulatory front, over the past year, both DOJ and advocacy groups, such as the National Federation of the Blind and the American Counsel for the Blind, have continued to press the issue, utilizing the threat of litigation and/or investigation to prompt website accessibility agreements with notable entities in a variety of industries. These agreements involved, among others, H&R Block, Peapod, Safeway, eBay, multiple colleges and universities (e.g., Florida State University, the University of Montana, and the University of Cincinnati), and other facilities, including hospitals and fashion retailers. In recent years certain Offices of the State Attorney General (e.g., New York State) have also pursued settlement agreements involving website accessibility in industries including financial services.

Fortunately, for those looking for guidance on how to make their websites accessible now or to take steps to prepare for the eventual finalization of DOJ’s looming regulations, there is a fairly clear path. Both the pending regulations and settlement agreements entered into by DOJ and advocacy groups generally define the appropriate level of website accessibility by referencing the Website Content Accessibility Guidelines (“WCAG”) 2.0, Levels A and AA, prepared by the Website Accessibility Initiative (“WAI”) of the World Wide Web Consortium (“W3C”). Places of Public Accommodation that wish to assess the accessibility of their websites and/or take steps to enhance their accessibility should engage in a user-based and programming-based dual-pronged audit of their websites against WCAG 2.0, Levels A and AA.