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Understanding the DOJ’s Recent Guidance on Web Accessibility and Its Impact

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Understanding the DOJ’s Recent Guidance on Web Accessibility and Its Impact

The Americans with Disabilities Act (ADA) is intended to “prohibit discrimination and guarantee that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services.” For the past 10 years the DOJ has remained mostly silent on the issue of website accessibility, which silence has led to an onslaught of private litigation. However, in March of 2022, the DOJ publicly released its "Guidance on Web Accessibility and the ADA" purportedly establishing "how state and local governments and businesses open to the public can make sure that their websites are accessible to people with disabilities as required by the Americans with Disabilities Act (ADA).” This course will explore:
The history of the DOJ's position and enforcement actions related to Web Accessibility What clarification, if any, did the recent DOJ's Guidance on Web Accessibility and ADA provide to demonstrate how local governments and businesses can make their websites accessible?
Update on the recent trend of DOJ Web Accessibility enforcement actions and key takeaways from the settlement terms and conditions

Transcript

- Hi, this is Stacy Trammell and this presentation is called Understanding the DOJ's recent guidance on web accessibility and its impact. First, we're gonna start with what is the ADA? The Americans with Disabilities Act is a federal civil rights law that was enacted in 1990, and it prohibits discrimination against people with disabilities in every day activities. What exactly does the ADA prohibit? The ADA prohibits discrimination on the basis of disability, and this is similar to our other civil rights laws that we have that prohibit discrimination based on race, color, sex, age, religious background, et cetera. Well, you might be asking, what exactly does the ADA guarantee? Well, the ADA guarantees that people with disabilities are given the same opportunities as everyone else to enjoy employment opportunities, to purchase goods, services, and also participate in state and local government programs. The ADA is there to protect people with disabilities. So what is a disability and who is someone who has a disability? A person with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, or they have a history of an impairment such as perhaps someone who survived cancer that's in remission or is perceived by someone else as having such an impairment. An example here that I've provided is someone who may have suffered a terrible accident and was scarred severely from burns, and because of how they look, how their body looks, how their face might look, and their scarring, they're perceived as having an impairment. Well, let's jump into and start talking about accessible websites and who is required or what entities are required to have accessible websites. The ADA has several different titles under it, and those different sections require different types of businesses, organizations and state government and local government to create websites that are accessible to everyone. So let's go over the different sections. Under Title I, these are employers who have 15 or more employees. This can also include state and local government. Under Title II, these are state and local government services, programs and activities. And then under Title III, we have what's called public accommodation businesses, which also includes non-profits that serve the public. And these types of businesses, some examples would include professional offices, lawyer offices, accounting offices, medical offices. It would also include restaurants, gyms, workout facilities, it includes private schools, and it also includes privately owned transit. So it would be like taxi companies, hotel shuttles, and ride shares. And so Title III, public accommodation businesses and nonprofits are required to provide people with disabilities an equal opportunity to access the goods and services that they offer. Well, what about the federal government? So under section 508, this is what we call section 508 compliance. And under section 508, federal agencies are required to maintain and have accessible websites. So section 508 is actually under the Rehabilitation Act that was amended by the Workforce Investment Act of 1998. And that specific act requires federal agencies to develop, procure, maintain, and use what's called ICT, otherwise known as Information and Communications Technology. And they need to make sure that that information and communications technology is accessible to people with disabilities. This is regardless whether they work for the federal government. So these would be for public facing and also for internal users such as federal employees. So the federal agencies are responsible for making sure that their information and services are accessible to people with disabilities. And so these revised section 508 standards include not only information technology tools and systems, but it also includes, it's actually quite an exhaustive list, it actually includes content, electronic content such as documents, webpages, presentations, social media content, blogs, and certain types of emails. So if you think about having to fill out a form for, say for example, social security or some other government, federal government benefit form, that form is required to be accessible. If you are downloading documents, say something that you obtain some sort of report or you were looking for a statement that's based on some federal government program, those documents are required to be accessible. So be similar to if you're accessing some sort of program or something like that, those webpages are required to be accessible under section 508. So let's start talking about the Department of Justice. The Department of Justice states that the Americans with Disabilities Act requires any person, business or organization that is covered under the act to communicate effectively about their programs, services, and activities. And the DOJ has indicated that this includes information that's provided through websites and mobile applications. So what are the rules of ADA website compliance? Well, that's a great question because there aren't any rules which makes it really fun. So specifically, there is no legislation that directly sets out what the technical requirements are for web accessibility. We don't have any sort of statute that indicates what these technical requirements are. There is no federal law. There is literally no guidance whatsoever that has been formerly promulgated by any sort of government agency that is clarifying what these rules are. So even though the Department of Justice is out there telling us that the ADA applies to websites including public accommodations, the government programs, the Title I employers, it's not clarified what specifically those standards or technical requirements must be. So where does that leave us? Well, before we get there, let's take a look at some of the history behind the Department of Justice Rulemaking related to website accessibility. It might seem that whatever's been going on with website accessibility has just been recent, in the last few years, but that's actually not accurate. Website accessibility has been an issue for the Department of Justice for well over a decade. Back in July of 2010, the DOJ published something called an Advanced Notice of Proposed Rulemaking, and the acronym for that is ANPRM. And this was regarding the accessibility of website information and services of state and local government entities. So this was under Title II, and in addition to that also public accommodations businesses and organizations, and that would be under Title III. So then what happened is shortly thereafter, the DOJ bifurcated the Rulemaking. So they split up 'cause they wanted to separately deal with state and local governments in the one hand, under Title II, and then public accommodations businesses, that are regulated under Title III. And so what they wanted to move forward with first was the state and local governments under Title II. So that was 2010. So years go by and nothing happens. And so in May of 2016, the Department of Justice publishes something called a Supplemental Advance Notice of Proposed Rulemaking, so that is called the SANRPM, regarding the Title II web accessibility. And they were looking for public comment input regarding a wide range of issues that had to do with the accessibility of web information related to those Title II state and local governments. Since that point in time, May of 2016, there's not been any rulemaking document that's been published by the DOJ regarding Title III web accessibility other than what was mentioned in that 2010 Advanced Notice of Proposed Rulemaking. So we're sitting in 2016 with the supplemental notice looking for some additional input and a little over like probably a year and a half later, in December of 2017, these previously announced Advanced notice of Proposed Rulemakings are formally withdrawn. So the Department of Justice formally withdraws the two previously Announced Proposed Rulemakings that were related to the accessibility of web information and services regarding the services of state and local government entities. And then they also withdrew the one that had to do with the nondiscrimination on the basis of a disability related. So they just withdrew them and they just notified everybody that they were formally withdrawn. So basically what the DOJ at that point in time is saying we're not doing anything with regards to any rules related to website accessibility. And this was also around the time when some litigation was just starting to pick up the pace related to the public accommodations businesses. It was just on the front end of that where I think there were several thousand cases, maybe like close to 2000 cases that were probably filed in 2017. And then of course that number drastically increased over the next few years. So we're left with, well why did the Department of Justice withdraw these Advanced Notices of Proposed Rulemaking? And so the reasoning that was provided was that the Department of Justice was evaluating whether or not this rulemaking was gonna be necessary or appropriate. You also need to remember what the political climate was at the time too. So there was a shift in administration. So website accessibility was no longer a focus of that particular leadership group. So the department was evaluating whether or not it's necessary, and these are their reasons that they provided, they were going to do an evaluation, further analysis, and continue to monitor and assess whether or not specific technical standards were necessary and appropriate to assist the different ADA entities covered under Titles I, II, and III of the ADA, to determine whether or not they needed that help to comply with the ADA. That was what was shared. So we're left in 2017 with no notice of Rulemaking, no nothing, and a we're going to keep it under advisement and basically we'll let you know. So meanwhile, litigation is certainly ramping up in the private sector. So what are the DOJ's responsibilities with regards to ADA enforcement? And so the DOJ has the ability and authority through lawsuits and settlement agreements to enforce the rules of the ADA and make sure that they are protecting people with disabilities. However, what the ADA, excuse me, what the Department of Justice's requirements are though is that they're not permitted to sue a party unless negotiations to settle a dispute have failed. So the Department of Justice has to first initiate a potential collaborative resolution with an entity through a formal administrative process. And if that formal administrative process fails, then at that point in time and no agreement can be reached, then at that point in time, that's when the Department of Justice has the ability to sue a party or entity to enforce the rules of the ADA. Well, so what exactly, what's the teeth that the Department of Justice has? What do they have the ability to do to different entities? So the Department of Justice, we already know that if they can't come to a resolution, they can file a lawsuit in federal court to enforce the ADA and they are entitled to seek and courts are permitted to order compensatory damages, back pay to fix, remedy discrimination, if the Department of Justice prevails. So under Title III, which is public accommodations, the Department of Justice is also able to obtain civil penalties. And these civil penalties will range from $55,000 for the first violation. And then they go up in increments, to 110,000 for any subsequent violation. So they do have the ability to levy some hefty civil penalties should they succeed Well, so we might be thinking about, well, has the department, considering our discussion just a few minutes ago regarding the proposal and then withdrawal of the Advanced Notice of Proposed Rulemaking, what exactly has the Department of Justice done, if anything, to enforce the ADA? And so I've put together here a list of cases. So under Title I, these are cases where the department has enforced the requirements related to employment for different organizations that fall under Title I. And you'll see that the list here primarily is different, local, you know, like cities, in addition to one large university. So I thought it might be a good opportunity to dig a little bit deeper and let's look at just a couple of examples of DOJ enforcement under Title I I just provided some excerpts here. All of the cases are interesting reads and I would encourage you to take a look at them, you'll see a running theme, but I just provided a couple here for illustration purposes 'cause I thought it might be helpful. So the first one is the Department of Justice enforcement against the city of Fallon, Nevada. And so what happened in this particular situation is that the Department of Justice initiates what's called an investigation related to a compliance review. And it's usually as a result of somebody filing a complaint. And so under Title I of the ADA under 42 U.S.C, Section 12112 , it's unlawful for any employer to make inquiries as to whether an applicant for employment is an individual with a disability or to inquire as to the nature of the disability before making a conditional offer of employment. And so what happened in this particular case is that the department was notified that there was some issues going on with the city's job application procedures and the city had a general application for employment and then it also had a separate application for employment for the police department. And it had the following inquiry, which was, are you now receiving or have you ever received any benefits or payments to you or your doctor for any job related injury? If yes, when and where did this occur? So that request was problematic because that flies right in the face as to it being unlawful to inquire regarding somebody having a disability or in this particular situation, was there an injury, was it permanent? That type of thing. In addition, then the city's employment application for the police department required applicants to answer the inquiry, are you capable of performing the job duties without assistance or accommodation? Again, any answer to either one of those questions would reveal information that is illegal under the law and specifically Title I of the ADA. So of course there was a consent agreement that was entered and the city was complying with the compliance review and the city agreed that that it was going to comply and take that out, and basically revise its employment practices. So then, also gave a little excerpt here on the city of Isle of Palms, South Carolina, And so, again, we have the Department of Justice issuing an investigation and compliance review, and this is of the city of Isle of Palms under Title I. And once again, this is an issue of not inquiring whether an applicant is an individual with a disability, I mean, it's right there in the United States Code. And here the city has an employment application that says check if the following are applicable, disabled veteran, disabled individual. So I mean, that was pretty clear cut that that was a problem. Again, the city of Isle of Palms cooperated with the Department of Justice and they were able to enter into what's called a settlement agreement or consent decree and revise their employment application processes. So now we can look at Department of Justice enforcement of website accessibility that's related to Title II, state and local governments. So we're gonna cover the Champaign-Urbana Mass Transit District case in a little bit, so I won't talk about that. But a couple of cases that I thought you might find interesting. Again, all of the cases are interesting and they're not long reads, so I would encourage you to take a look at them. But one for an example here, you could see that these are primarily either, we have one, public transportation, that's a Champaign-Urbana Mass Transit District, and then the rest are just public, small government, local government or public institutions. So let's take a deeper dive into the Department of Justice enforcement under Title II. Let's take a closer look. So Title II prohibits public entities from discriminating on the basis of disability and from excluding anybody with a disability, from participating in and/or denying individuals the benefits of their services, programs and activities. So these are Title II entities. So the first example that I have for you is the Department of Justice versus Miami University. And in this particular case, we had a student who was actually a former student at the time that she brought the action against the Miami University. She's blind and so she brought a complaint against the university and its former president, because what she believed is that she was being discriminated against as a result of her disability for several different reasons. She was not able to access course materials, she was not able to access the website or webpages at the school, and she was not able to access something called the learning management system, which is how colleges and universities these days put up their courses or expect you to log in or check your grades or even register for courses. You're registering through an online platform, that can also be called a learning management system. And then some courses also have course software. And so this particular individual was not able to access the majority of what the Miami University was offering with regards to courses and materials. And she was also not being provided any sort of accommodations or what we call auxiliary aids. So she brought a complaint and so they were able to enter into what's called a consent decree and so that Miami University could make revisions. But what the limit is, is that it needs to be what's called equally effective alternate access, but it's limited from the standpoint that the university is not required to take any action that can be termed what's called a fundamental alteration in the nature of a service program or activity. So they can't change the course to provide access, they need to do it in a different way, to the best way possible without materially impacting the course. So they needed to make these remediations across the board here and also do it in a timely way. So the Department of Justice and Miami University were able to enter into a consent agreement, and Miami University made the agreement to correct those issues. And one of the requirements for compliance was with regards to conformance with the Web Content Accessibility Guidelines, which have been put out there by the Worldwide Web Consortium, otherwise known as the W3C, and making it compliant with version 2.0 of the Web Content Accessibility Guidelines and Level AA. Just really briefly, the Web Content Accessibility Guidelines are out there they are what they say, which is guidelines. The federal government makes all of its websites and information compliant with the latest Web Content Accessibility Guidelines. We're in version 2.1 or 2.2 now. And there are three levels of accessibility. There's level A, which is basic, there's level AA, which is the middle of the road, and then there is level AAA, which is you are super accessible. So level AA, the middle of the road, with the federal government, to make sure its information is accessible to those guidelines. And in this particular consent degree, Miami University was required to comply with WCAG 2.0 level AA. And that included webpages, web applications, web content, websites, sub-domains, you know, for all the different departments, administrative offices, you name it, at the university, that's what was required. So the Department of Justice has been familiar and has been utilizing the Web Content Accessibility Guidelines for a little over a decade now. So this is not new to them. All right, so let's move on to the other excerpt case that I thought you might find interesting, which is the Orange County Florida Clerk of Courts. So in this particular situation, Orange County is an area that is in the middle of the state of Florida, Orlando is probably the largest city that's in there. And it is also the Ninth Judicial Circuit Court of Florida. That's the division there. And so in this particular situation, there was a blind attorney who was representing a plaintiff in a case, and he was trying to get access to court documents that had been filed with the clerk of court for Orange County. And he had made several written requests to obtain these documents and these documents, once the courts went into electronic filing, the ECF system, motions and court documents are regularly uploaded and they're usually in the form of a PDF. Well, these particular documents that were uploaded and available at the clerk's office for download were PDFs but they were inaccessible, meaning that they had not been OCR'd or had optical character recognition performed in order to scan the document to determine the text. And so what the PDFs in effect were was basically pictures of the pages. And so pictures of the pages is not accessible to somebody who uses assistive technology. Somebody who uses assistive technology relies on that assistive technology to scan, whether it be a document, a website, or a form, they use their assistive technology to scan that and their assistive technology reads the text to them. If there isn't any text that is scannable and able to read, then the assistive technology basically says there's nothing there. And so that's what the problem was here, is that these PDFs were not accessible. The text was not readable to this individual's assistive technology. So he had made several requests in writing to get these documents. It significantly hampered his ability to represent his client. And so the Department of Justice got involved as a result of this complaint. And so the Orange County Clerk of Court ended up entering into a consent decree and settlement agreement with the Department of Justice, and they had to make the documents accessible. So the clerk was required to make whatever the documents were, and so one of the complaints was that a document had been filed that had exhibits that were very important to a case, and so none of the exhibits were accessible. So this individual couldn't gather any information from the documents that had been filed. And this was actually pretty quick action by the Department of Justice from the standpoint that, they had a 90 day timeline that they wanted the clerk to step in and step it up and get this information accessible. And so they wanted the clerk to establish a procedure to allow a request and a provision of documents in an accessible manner, understanding that the clerk wants to maintain documents and keep them secure. But if somebody's requesting a document, there needs to be a point of contact that can handle that request if that individual lets you know that the information is not accessible. So they're supposed to step in and get that taken care of, they can't charge extra for doing that. And then they needed to do it in a timely fashion. And in this particular situation, the recommendation was that timely should be within five business days, timely, meaning that you need to get it done in enough time that somebody can reasonably respond within a deadline to a time sensitive legal document. And also to keep the individual who's requested that information apprised of what the status is. Once again, we saw, the Department of Justice utilizing the Web Content Accessibility Guidelines and that the electronic documents need to comply with the WCAG version 2.0 level AA. But they also made a caveat that if somebody made a request in a different format that maybe was easier or more efficient for the clerk to comply with that, they could certainly do that. So that was an interesting case. In addition, the clerk's office also had some issues with their webpages, so they had six months to get those accessible. So whether it's web apps, different things, requesting forms, all of that needed to be brought up to speed and made accessible. And then they also required some training. so that was an interesting case. Again, you can read the others, but I thought that that those two actually were worth discussing. So let's talk about the Department of Justice enforcement of website accessibility related to Title III businesses and nonprofits. So you see here we have a laundry list of Title III businesses and nonprofits over the last 10 to 12 years of enforcement action by the Department of Justice. I'm not gonna talk about CVS, Meyer, Kroger, Hy-Vee or Rite Aid, we're gonna talk about those in a little bit, but I thought we could take a closer look at a couple of interesting cases. So one is, I thought we could take a little closer look at the Teachers Test Prep Case from June of 2018. So Teachers Test Prep was a private entity that offers test preparation courses related to certification exams, credentialing exams for professionals. And so they offer online classes, they offer tutoring, they also offered live classes. And so what was determined as a result of a complaint was that the Teachers Test Prep courses that were online, these online video courses, they didn't have any closed captions. So that was a huge problem because I mean, that's just a few years ago and they didn't have any closed captions, which is pretty standard. So they were required to fix that immediately because the courses were inaccessible to people who were deaf or hard of hearing, they couldn't utilize the courses whatsoever. So again, we have a settlement agreement that's entered into between Teachers Test Prep and the Department of Justice and they enter into a consent decree regarding the different modifications that they're going to be doing. And in here is pretty quick again, you know, 30 days they needed to modify their courses and fix those so that they could ensure that they were accessible. And once again, we see the Department of Justice ensuring that the web content in the video files is consistent and accessible under the Web Content Accessibility Guidelines version 2.0 AA. So another case I thought was worthwhile discussing is the Department of Justice versus Peapod and Ahold USA and Ahold is basically the parent company, if you will, of Peapod. So in this particular case, a complaint was lodged with the Department of Justice related to Peapod's website and mobile app. And as you can see the date of this case, so this was a little while ago. So here we have an issue that's being taken up by the Department of Justice with regards to mobile applications along with the website. And the specific issues that were going on here is their website and mobile app were just not accessible, just probably built on an old platform. So we had issues like no alt text, they had images, buttons, form fields that were unlabeled or they had inaccurate alt text so you could not tell what it was that the picture was. They also had popups on the website that could not be read by assistive technology, so that was an issue, or they interfered with assistive technology. And then they had frames that weren't named and identified. So somebody using assistive technology wouldn't know where they were on the website. They also had issues with tables missing, header information and proper markups. So this could be like something that's conveying maybe either comparisons or different options if you're trying to select maybe colors and sizes and different things like that. It's usually where we see tables or maybe a pricing structure. And then they were utilizing boldface type to show fields that were required versus using the words, required, like filling out a form field, somebody who is blind is not gonna be able to see whether or not the text is bold. All they know is just that the text is there. So that was inaccessible. They also had videos that had no closed captions or inaccurate closed captions. So again, we have some issues here, the Department of Justice stepping in and requiring, once again, we have a consent decree and again we have the department talking about Web Content Accessibility Guidelines, making sure everything is accessible. They even specifically reference mobile applications and gave a date for the mobile application to be compliant along with the website. They gave a little more time on that, but it was under WCAG 2.0 level AA. In addition, they also wanted Peapod to check in with vendors with regards to third party content to make sure that this information is, if they're gonna include it, that it's also accessible. They wanted Peapod to, if they're gonna refer or utilize third party content, to make sure that's accessible also. And just some additional cases, I would encourage you to take a look at, on the page that has a list of cases, the last few of the different universities, Princeton, Case Western Reserve, Pace University, Reed College. So the department actually took some interesting action, I didn't reference this in a slide, but just be interesting for you to to read. but I guess back in 2010, there was a big push by universities to get into using electronic format for coursework and coursebooks, textbooks and that type of thing. And so these universities started to use a Kindle DX I'm not sure exactly what a Kindle DX is, but these universities were using, so all of these cases relate to these universities using a Kindle DX for courses and textbooks, that it was a handheld device to make things more efficient and easy. And the Kindle DX was not accessible and nobody with a disability who was using assistive technology could utilize the Kindle DX. So that's what those cases are about. So check that out, it's interesting reading. All right, so let's talk about, what has been some of the recent guidance? And we've actually had some, which is interesting. So we've actually had some guidance from the Department of Justice to hopefully clarify what can businesses and government entities do. So in March of 2022, the Department of Justice came out with this guidance. And this guidance was here to describe how state and local government and businesses that are open to the public, which are those public accommodation businesses that we've talked about, can make sure that their websites are accessible to people with disabilities since that is required by the ADA. So what the guidance indicated is they've raised what they listed as examples of accessibility barriers. So these barriers include poor color contrast, or using color alone, lack of alt text, we're starting to hear a theme, right? No captions on the videos, inaccessible forms, mouse only navigations, those are accessibility barriers. So then the DOJ started to specifically look at, they had basically, gave some guidance that's related to state and local governments. And so they indicated that these public entities have to make sure that their programs, services, and activities available through the website, their communications, that they're accessible and that the ADA requirements are applying to all of these programs or activities of state and local governments, including what's offered on the web. And then the DOJ also made similar statements related to businesses that are open to the public or those public accommodation businesses. So again, making sure that these businesses and organizations are communicating effectively with individuals for disabilities. And again, we see the Department of Justice saying that they have consistently taken the position that the ADA's requirements reply to all the goods, services, privileges or activities that are offered by those entities. And we saw that as we were talking about those different enforcement actions. So then the Department of Justice says in their guidance that businesses and state and local governments have flexibility, which kind of was a surprising word, flexibility in how they comply with the ADA's general requirements. Because I think from what we've just talked about with enforcement, I don't think we've seen really flexibility. We've seen some pretty consistent statements related to what the department is wanting different entities to comply with. So the Department of Justice said that they don't have a regulation, we already know this. This is spoiler alert, no surprise here, they don't have a regulation setting out the detailed standards, but it's supposed to be accessible. But the reason why they don't say what those specific regulations are is because the entities have the ability to choose how they're going to ensure the programs and services and goods that they provide are accessible. Well, we've had some conversations about the different cases and it seems like they've been choosing the same requirements when they come to their settlements and consent decrees. But they are saying flexibility. So the department was talking about what are existing technical standards and that these technical standards provide helpful guidance. And so they refer to, no surprise, the Web Content Accessibility Guidelines and they also refer to the section 508 standards, which we talked about at the beginning of this particular discussion. And so here you're seeing recommendations, which are things that we've been seeing through their enforcement actions, color contrast and text, text cues, text alternatives, otherwise known as alt text, video captions, making sure forms are accessible, having the ability to zoom on the screen and make sure that there's a way to report accessibility issues and that the headings are clear and organized. So then the Department of Justice offered some resources to the public for more references and they gave some different websites which included section 508, which we've talked about, along with section508.gov. And they also referenced the Web Content Accessibility Guidelines. They also included something called 18F Accessibility Guide, which was published by the GSA. So they're offering some resources to help clarify things. So let's talk about some recent Department of Justice website accessibility enforcement. So we've seen some of the other cases, but let's talk about some of the things that we've seen in 2021, 2022. So you may remember under Title II, I had that one case that was the Champaign-Urbana Mass Transit. And so in this particular situation, the Champaign-Urbana Mass Transit District, they received a complaint and the website was inaccessible. So here the Department of Justice required the Mass Transit District, they needed to make their website and their mobile app comply with the Web Content Accessibility Guidelines. But now we're seeing a new version, Version 2.1, level AA still, okay. They referenced the WCAG as these voluntary industry guidelines, yet they're the guidelines they use in all of these different agreements, but that's fine. And then they also gave a recommendation on how much they should use to invest to make sure that they improve it. So it's 100 grand, so that's a significant amount of money. Then we also saw the Department of Justice enforcing in 2021, we saw the beginning of the enforcement related to vaccine portals. So you may recall we had a list of different drugstore type places. So there was a settlement with Rite Aid and Hy-Vee regarding vaccine portal accessibility in November and December, 2021. So their portals were not accessible to people with disabilities. And so the Department of Justice stepped in and issued some requirements. So Rite Aid was required to make sure that its portal conformed with WCAG 2.1. They were also, and this is coming right from the settlement agreements, they were also required to provide an accessibility statement and contact information. They were required to test the accessibility of their content, retain a consultant, provide website accessibility training and audit reports to the Department of Justice. So that was a requirement. And Hy-Vee, the settlement requirements were very similar to Rite Aid, but they also added to that settlement, user accessibility testing by one person with a disability using assistive technology or a screen reader. So then we started in January '22, we saw the continuation of the vaccine portal accessibility issues. And so we have the enforcement in 2022 and here we have Kroger first up, again, vaccine portal to be accessible with 2.1. A lot of the things that we saw with Rite Aid and Hy-Vee, test the content, get a consultant, provide training, website audit reports, the user accessibility testing by one person with a disability using a screen reader. But then what they also added was user accessibility testing by a group. They wanted the accessibility testing done by individuals of different disabilities. And so those who can use a mouse, those who can't use a mouse. So that was a shift on that settlement. So the continuation of the settlement in 2022, we have Meyer, which is a big grocery store chain, that was in February of 2022. And then we had CVS in April of 2022. So in Meyer, again we have WCAG 2.1, the accessibility statement, test the content, then we also see get a website accessibility subject matter expert to advise on the accessibility conformance, audit reports to the DOJ. Now we're giving timelines on testing. So now we're seeing a requirement of quarterly user accessibility testing by individuals with different disabilities. And then annual training. And CVS in April, the same requirements as Meyer, but also monthly user accessibility testing. So that's pretty frequent. And CVS was required to resolve critical accessibility issues within 10 days. So that's pretty fast, pretty quick turnaround. So what about future rulemaking? What are we looking at here? Is anything gonna happen with the Department of Justice? Well, maybe. So in July of 2022, the Department of Justice announced its intent to publish, you've seen these acronyms before, a Notice of Proposed Rulemaking in 2023. And what they said here is that it's their intention to amend the Title II ADA regulations, so here we're focusing on Title II, which is the state and local government entities, to provide technical standards to assist public entities in complying with their existing obligations to make sure their websites are accessible. And so it seems like even though we're talking about Title II, there's likely going to be future regulations that are related for private entities, which are those public accommodation businesses. So my thought here is I would, my key takeaway is public and private entities who fall under Title III should likely plan for WCAG 2.1 level AA compliance now because that's probably the minimum threshold that they're gonna start from. So we'll see what happens. Thank you for listening.

Presenter(s)

Stacey Turmel
Assistant General Counsel/Senior Vice President of Technology Transactions
Citigroup

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