ADA Compliance

You're listening to cybersecurity and compliance with Craig Petronella, visit us online at Petronellatech.com.

My name is Steve Baron, and I am a founding member of a law firm in Chicago, Illinois, called Baron Harris Healy. We are a commercial law firm with emphasis and practice in media, advertising, and marketing law. We defend publishers of all stripes in matters that face that they may face involving the materials that they publish. I also practice in the areas of intellectual property law, data privacy and security, commercial transactions, and general commercial litigation. I've had some exposure to the topic of ADA website accessibility because some of my clients have been hit with either threats of lawsuits or actual lawsuits relating to ADA claims.

Awesome. Thank you, Steve. I appreciate you're joining. It is a hot topic that my audience is eager to find answers to, and looking forward to you shedding some light on this topic. So thank you, again, for joining.

My pleasure, I'll do the best I can.

So, ADA compliance has become a hot top c in recent months. More than ev r, it seems. I was doing some research on it. But the proble that I've found is there's a lo of misinformation nd conflicting information. Th re's a lot of products availa le online from companies tha are using scare tactics. You eed to buy this widget, protect your website, and make sure you' e ADA compliant. And I've even een some news publications a out small business owner that are just selling shoes r something simple in a ma l outlet. They got hit with a 50 000 plus fine for just entirel out of nowhere with not even a opportunity to fix or rem diate the issue. I just wante to ask you a few questions, if I may, and see what your thoug ts are.

Absolutely. Happy to do the best I can. If you wa

Yes, sir. t, I'm glad to give a quick bri f thumbnail history of he ADA. When you say ADA, that s ands for the Americans with Disa ilities Act. That is a federal l w that was put in place n the very early 1990s, during t e first George Bush administra ion. If you think about your Internet history, 1990 or 91 as before the Internet became hat it is today. It wasn't th t hub of commerce that it is to ay. People didn't have websites like they do today. So the DA was written for a different e a. And it covered different kin s of businesses, governmental e tities. But the focus for today is title three of the AD

Okay. I wanted to give that background witless, which covers public accommo ations. And when the DA came into being back in the early 90s, they listed essent ally about a dozen or so example of the public accommodation, public account and private ac ommodations, private businesses that would be considered publi accommodations because they af ect commerce. And that was wha the ADA was meant to apply to. o give you a flavor, or an xample, the law places lodging ike hotels and motels, es ablishments that erve food and drink, restaurant and bars, places of exhibitio, and entertainment, movie ho ses, theaters, etc. Places of p blic gathering auditoriums con ention halls. Anyway, I'm n t going to go down the whole l st. You get the idea that hen the ADA was first passed, w at was on the minds of la makers then was how can we m ke places of public accommodati n physically accessible to peopl with disabilities. So the mind et was about physical places. A d that was what existed then. ith the explosion of the Inte net, so much is happening on we sites. So much commerce being co ducted on the Internet. here's been this movement over time to expand the ADA's re ch to websites. Today, your que tions aim to contour about web ite accessibility who need to be worried about whether thei website is accessible. Is tha fair to say? Stinger Washington. It might have at least that frame of reference.

Thank you.

Okay.

Go ahead. I was going to say so. Moving to modernize this regulation, it sounds like it needs to be updated. Since it's a little out of date, I guess. Are there any types of businesses that don't need to comply? What are your thoughts on that?

Sure. So it's a little murky. And I'm not surprised that you found a sort of inconsistent information online about this in your research. And the reason for that is that jurisdictions around the country have not necessarily treated the issue particularly uniformly. The federal courts across the country are divided up into various circuits. Here in Chicago, for example, we're in the Seventh Circuit. In North Carolina, I believe, in any event, that the Courts of Appeal that I've had to deal with the applicability of the ADA to websites have come down in different ways on different issues about the scope and application of ADA website accessibility to different kinds of websites. I'll give you one example. Today, there's a bit of an issue over whether a website with no nexus or connection to a physical place has to be ADA accessible. I mean that there is a body of some courts out there, and some circuits have said the ADA only applies to websites where there is a companion physical place of business. So, by way of example, if you go to Dunkindonuts.com, Dunkin Donuts also has a set of retail stores where you can go and get your doughnuts. You may be able to go online and see where the stores are. You can even order donuts online, but there are physical locations where you can go. Some courts have said there has to be that companion physical location to apply for the ADA. Other courts have said no, there doesn't need to be a physical place, a physical nexus, or connection to a physical place to apply for the ADA. That's one area of dissonance among some of the courts that have dealt with this situation. There may be some misinformation about whether the ADA applies to small businesses. The answer is yes. It does. There isn't a threshold at which the ADA doesn't apply. So even a small sole proprietor type business could theoretically be a target for an ADA lawsuit. In my experience, the lawyers bringing these cases around the country have typically aimed for larger enterprises. For obvious reasons, the impact may be felt, or largely, if the case is brought as a class-action lawsuit, it may be better to have a larger target defendant. But we've had some very small, closely-held family-run businesses that have either received threats of lawsuits or been sued for ADA violations. So there isn't a size limitation. I want to clarify to the viewers today that there's no size limitation to the type of business. Another question. Is there a limitation on websites that don't do any online commerce where no actual transaction occurs on the website? And the answer is, again, not necessarily. The fact that my website has an online presence. We don't do any business of law on the website. We don't give advice. We don't take client intakes on our website. It's just simply an expanded calling card. Okay, like a brochure. You can read about us,

Like a brochure? by the way, it's bhhlawfirm.com. You can hear or read about us on our website. Does that kind of marketing brochure website rise to the level of public accommodation? The answer is not entirely clear under the law. Those types of websites have not historically been targets for claims or lawsuits under the ADA. There isn't a commercial transaction. Nonetheless, ima ine that a blind person com s to a website and can not rea about the business, can not und rstand what they do, or a dea person comes to the web ite. There's a video witho t any closed captioning. And t ey can't understand what is be ng said in that video. Even hough it's just simply a marke ing piece. I think the ADA is no necessarily excluding them rom coverage. As I say, these have not been targets on any b oad-scale for ADA claims, but I don't think anybody should belie e that they can claim immun ty simply because it's a marke ing piece, and there isn't a tra saction or commerce that's going on on the website. I think all w bsites have to be mindful that there is a potential th eat. And one of the things I wil tell you, not that I'm advocati g one way or the other in thi area, but many the plaintiffs' awyers will say it's good busin ss. Why would you not have a ite that is not accessible to pe ple with challenges, whether the side challenges or hearing c allenges, or other disabil ties? Your goal oug t to be to make your website u derstandable and accessible to as many people as possible So you're only hurting yoursel if you don't take those steps. hat's a pitch that you hear rom the plaintiff's lawyer. I think that's useful information. A couple f things came to mind when y u talked about the website, th brochure component, and the c mmerce area. What's a littl confusing to me is if there's a payment link in the footer to ake a payment? I've seen law f rms have a payment portal lin. And I've seen other firms that are business to business d ing that to take payments f om their clients. Does that quate to e-commerce? I think a ot of viewers and listeners ve challenged with it's not bl ck or white. It sounds like

It's a fair question and a challenge. The there's a lot to be discussed, nd many of the scoring too s when you grade yourself on he compliance factor. It's sometimes out of 100, for exa ple. Most viewers and listener want to make a good effort and include everyone and try their best. The concern that happ ns, though, is getting a demand ng and threatening and scary let er. In the research that I loo ed at, some of the fees were 0,000 or higher. That would jus crush a small business, t e average one anyway. They can' just write a check like that. hat are your thoughts on that? smaller the business, the bigger the challenge sometimes. There are a couple of responses. The law says that you must make a reasonable accommodation. Of course, reasonable is a wonderful lawyer's word. It allows us full employment a lot of times. But reasonableness varies depending on the nature and size of the business. So, the Mom and Pop shop, or the sole proprietor doing small business and making a six-figure revenue per year. A modest inc me won't be held to the same le el of accessibility in terms of reasonableness. A large c rporation is doing millions or billions of dollars worth of evenue every year. It has wa more resources. That's one th ng to keep in mind. Now the seco d thing. What to do if you've otten such a letter to see w ere you stand? There are ma y tools out there. There are mo e and more companies now that a e promoting themselves as ADA w bsite experts and complianc companies. You have to have a little bit of letting the buy r beware in this space because here are probably are better than others. But be a little it wary of those companies that ay they can test your websites s lely with machine algorithm. Machine algorithms are fine. nd they might give you some star ing bases for a report o those parts of your website t at, maybe, have some issues But there always has to be a uman intervention level to c eck what is happening to th consumer experience. If you a e looking to hire a consultant o help you with this, you shoul not just stop at the machine- eadable stuff. You h ve to go to the level of having n actual human intervention to est and look at your website s happening. I think it s good. In this era, it woul be good for even small business s to put on their budgets co ing up some level of resou ce toward doing some examinatio and testing, and begin to make remediation. One of the helpful reasons is that under he ADA, a plaintiff who sues o makes a claim against a websi e can get an injunction. It's a court order to require you to ake changes. There are no eco omic damages that you can win. If you can demonstrate that you ave already begun the remediatio process that you're in th t process, that helps you take way the need for an injunction. And it may mitigate the r sk of attorney fees. Starting i always better than doing othing. Even if you can't fini h it or it's not perfect. Rememb r, it's only reasonable accomm dation. Another easy fix to th nk about for small businesses i to have a prominent pla e where your customers an telephone you and make n order that way or make an inq iry that way. That's not nece sarily is a perfect, legal suref re way to get around the reason ble accommodation piece. But n t having a phone number is not oing to help you at all. Having phone number and the phone n mber being screen readable an accessible, not buried a the bottom of your website, and fine print is an excelle t first step for many small b sinesses.

That's good advice. It sounds like it's recommended to do some assessment. Maybe on an annual basis to see what your web properties look like, see how compliant they are. Possibly, run some of these free tools or check the percentage of compliance, how it's viewed by the tool, and the screen reader technology you mentioned. It sounds like those are good things. You had brought up a physical address earlier. What about the folks that are working from home? What about the smaller business consultants that put their home address? Or maybe they have a virtual office? How does that play into this?

Remember, we're talking about my favorite website accessibility?

Yeah.

So if you're a small business and have a website, where you're interacting with your clients in some way, the property we're dealing with here that we're focusing on accessibility, where you are, and where you work from, is beside the point.

Okay.

It's the website y u're putting out there that you re holding out to the public t engage them. Number one, is it a public accommodation and number two, if it is access ble according to the ADA? I h ar what you're saying that many people, including myself, h ve migrated to work in whole or n part from home. But it's almos beside the point. What is your ebsite doing out there? And i it preventing people from get ing access to you? And it does't matter where you are. I matters what their experience with the website.

Okay, that's good information. Something else came to mind. Is it an option for website developers or business owners to create a version of the website that's kind of dumbed-down, meaning it's just text or HTML, and not many graphics, not a lot of slider technology, or just nice cosmetical stuff modernized nowadays? What if a business owner stripped all that off? And if you are looking for ADA, you click here, and this is the version. Do you feel like that could be a solution? Or do they need to go and buy something more comprehensive?

That may be a solution. I think it's business-specific because you don't want to create a situation where you're a dumbed-down website. Not pejoratively, but meaning from a screen reader technology standpoint. It's accessible to people, as long as the person interacting with that website, with whatever their disability is, can get essentially the same information as a person without the disability on the regular site. That may be a potential solution for a reasonable accommodation under the circumstances. But suppose your experience as the person with a disability is substantially poorer, meaning that they don't get most of the same information that person without the disability is getting. In that case, you're still at least potentially liable for a claim. It would probably be a good point for me to explain just a little bit about what I'll call de facto standard has become in terms of measuring website accessibility. If you don't mind, I can tell you.

Yeah, absolutely.

The law is a bit unsettled. The executive branch agency Department of Justice, which would ultimately promulgate or issue rules about website accessibility is yet to do that over many years. There is no fine-grained guidance on what website accessibility means from a federal law standpoint. We have the general guidance of the ADA passed in the early 90s. Before there ever was this thing that we call the Internet. But the Department of Justice creating an issue and rules has not done that. During the Obama administration, there was an effort that lasted many years and never ultimately came to fruition during the Trump administration. It's been largely just sort of table. There are no federal regulations today that relate to website accessibility. What does that mean for companies out there trying to figure out what it means to be website accessible? What do they have to do? There are no federal guidelines on this. And so what has come in to fill the void. In the absence of any federal regulation is a non-governmental organizational approach. There is a group called the World Wide Web Consortium, they're known as WC three. And they are an international organization that has developed standards for website accessibility for disabled people. And they have put out guidelines that business website owners can use as a baseline standard. And now we're up to what we call acronyms as an acronym WCAG 2.1. That's the version that they've most recently come out with, and there are different levels. There's a double-A, a triple-A, which are different levels of accessibility. Most of the courts that weighed in on this have looked at double-A as a standard for any business. WCAG standard, not law, just to you know, a non-governmental organizational guideline has become the de facto law. When I say de facto, I mean, it's the thing that businesses and courts are increasingly looking to, in the absence of any federal regulation, as the baseline for compliance with accessibility. That's where website consultants look to certify a website or determine whether your website meets or doesn't meet a standard. That's the standard. They're looking at the WCAG standard. That is not a law in this country but has become cited in many legal decisions. It's becoming the law in the absence of federal regulation. Anyway, that's a long-winded explanation. I'm sorry to take all that time. But I wanted people to understand.

Oh, that's excellent information.

There isn't, at the moment, any federal regulation. I don't know whether the Biden administration, assuming it takes effect in January of 2021, would take a different approach and be more involved in restarting an effort to promote, promulgate federal regulation or not. But at the moment, there's nothing, and we're reliant on WCAG. Anyway, when you hire an expert, that's what they look to. And that's what they will ultimately be guided by looking at your website.

Other things come to mind. I do a lot of podcasts, and I'm sure others too. And one of the options, after you do a podcast, is to do the transcription. You can get it transcribed. And it almost sounds like that should be something that you always do. Because if you're dealing with somebody that's deaf and can't hear your podcast, it would sound to me like you're making an effort to serve more of your community by going ahead and doing transcription. So you have the written version as well. It sounds like if you have video content, you should do and consider closed captioning. Some of these other features on your video content further show proof and evidence that you're making strides towards getting your information into more hands. Is that accurate?

Absolutely. I think that's a sound, a judgment call. I think both. From a business standpoint, why wouldn't you make your content available to people with hearing issues? And also, in this day and age, speech to text technology is accessible. It tends not to be cost-prohibitive. Indeed, as it was maybe just a matter of years ago, it's much easier to turn speech into text. So I think that's sound advice. Most people are listening to podcasts. It begs the question. Does ADA accessibility also apply to mobile devices? And the answer is, yes, it also applies to mobile devices, mobile apps, etc. In this context of development, you want to have an examination of your mobile accessibility as well, along with your website accessibility.

Great information. Okay. So and I am touching back on something that you said earlier. You said, or it almost sounded like, you want to try to make the experience for everyone be as close or nearly the same as much as you can. So, when I gave an example before, maybe, you could have a website version just for a particular situation that falls under ADA. Still, it sounds like you don't want to skew and make your website so much different of an experience. You want to try to keep and preserve the same experience for all. Is that fair to say?

Right. As best as possible.

Yeah.

The law says it reasonable accommodation, you don't have to go precisely to exact but a reasonable effort to simulate the experience.

So if you have audio and web or video content, different graphics on your website, you want to think about how this could be interpreted by somebody who has a visual impairment. In some of the research that I did, you can't have a lot of movement on the website. It could cause a seizure. So you might want to have a version that doesn't have the movement for that particular animation or something like that. But it sounds like you can't do too much of an extreme, though, because if you could do too much of an extreme, and it completely reduces the experience, then it's it could be viewed. I would think negatively. You want to try to keep it as consistent as you can. Is that fair?

Right. I think that's a nice way of encapsulating that exactly right.

Okay.

I'll just piggyback on what you said. While we speak of disabilities, mostly being sight-impaired, or blind, or hard of hearing or deaf, those are, categorically, the largest groups of people. I think that where we see claims out there, there are other disabilities. You mentioned somebody perhaps with epilepsy who might be triggered by flashing on a website. That's another example of a disability. There are people with movement problems with keyboard access issues, I mean, the need to have speech controlled access. There are many different other disabilities beyond hearing and sight disabilities that may be triggered by ADA. That's one thing that we can standard covers, but I want viewers and listeners to understand that it does, not just hear impaired and sight-impaired people.

Yeah, that's good. It almost sounds like it shouldn't be one way or the other, either. It sounds like there are so many disabilities that people could have. It might be good to give the user a control set of how they want to view your website. Maybe they want the colors to be dimmed down, want it to be black and white, or want the contrast. Perhaps, there's a toolset approach of giving the user a choice. Nowadays, a lot of people like dark mode. So there's the lightened mode for daylight, and then the darker mode, and you could adjust the color temperature of things so that the blue light. That's from an endpoint perspective or a mobile device perspective. But it sounds like everyone that's listening and viewing should pay attention to this. They should take a look at their websites. They should look at the content there and try to put themselves in the shoes of somebody that might be disabled, and try to document and make a reasonable effort to accommodate them. You want the website to be accessible to as many people as possible. And it sounds like it's fair to say everybody should look at this at least once a year.

Yeah. I think annually is a good benchmark, with the caveat that if you do any major adjustment, overhaul, updating of your website. I think that's an important moment in time to reevaluate. Think about what you have going on. So I would say annually, but if you do something significant, do it in that context.

Okay. Is there any tip on the number one or number two thing they should do right away to comply better?

Yeah. One of the hings I've said is to make sure

Right. you have a prominent ph ne number available. P eferably a toll-free telephone umber allows people to reach your website if they need to rea h your business. I would then suggest that people budget for review by a reputable ADA cons ltant as soon as they reasonably can within their budget, pref rably in 2021. And one of the ot er things I will say is that mos reputable ADA consultants will, once they begin working with yo

And that can also be a bit of a defensive, allow you to put on your we site a badge or a seal from th m that says that a website under review sewing. mechanism. It might fend off potential plaintiffs or plaintiffs' lawyers from bringing a claim because they see you've taken this seriously, and you're working on remediation. That's one of the other values of hiring a good consultant as you could do that, and you could announce you're doing it. So offer me to frame this a little bit more in terms of the context. Over the last three or four years, we've seen exponential growth in the number of lawsuits filed in federal court. Because it's a federal law, that's where many of the site's lawsuits are filed. But there are also a growing number of state laws that are also very favorable, some of them, by the way, unlike the ADA, allow a plaintiff to get damages or economic relief if they have a claim. And I will tell you the three major jurisdictions where we see a lot of state court action and the most federal court action in California, New York, and Florida. Those are the big three in terms of the number of cases that are brought. And if you're not in one of those states, don't necessarily think I'm not in one of those three states. You can still get sued there because your website is accessible in those states. And you make customers that come to that website there.

Right.

Don't think that you may not be at risk just because you're based in North Carolina or Illinois. So the trend is still rising in the number of cases. And that's why I recommend that companies from small to large put some time and effort into assessing where they are with this.

What about insurance? Does insurance help protect the client? And if they get hit with a lawsuit?

And the answer is it depends. Sometimes, yes, you should check your coverage to see whether it's your commercial general liability coverage that might come into play, whether it's covered under advertising insurance or something like that. But I've had situations where certain clients can give i over to their insurance carri r when they get a claim. And the say they will cover you. An I've had other circums ances where there is no coverag. I think that's an excellent q estion to ask. And it's one th t your listeners and viewer should consider when they'r thinking about assessing their isk here. Frankly, one of the bi risks is, do I have to hire a lawyer and start paying the la yer to defend me in this? And th answer is you're going to hav to hire a lawyer, but it mak s a big difference if that def nse cost is coming out of an ins rance company's pocket ver us your own. I think it's a wor hy exploration for any bus ness to call your broker and say I haven't got a claim yet. But if I got a claim, would I be co ered under this? And if so, wh t are the limitations that I mi ht face? So that's a great qu stion.

That's probably good practice to reach out to your insurance agent once a year to check your coverages and score your risks based on what options you have or what you're signed up for now. Maybe consider increasing your budget to accommodate, just like you should be doing for cyber insurance and things like that?

Absolutely. There's one other tip that I just thought of. For those businesses that are maybe not yet online, or they're online, but going to do a wholesale rebuilding of their website, and they've already hired a consultant, web developer to do that, one of the other things to think about is shifting liability risk to your vendor. So in your contract with your vendor who's building your website, you may want to make them represent and warrant you that the site they build will be compliant with the ADA. And you're pushing off onto them, the potential liability for a claim that emerges or might emerge if that site is not compliant. So you'll put in representation and a warranty and indemnity clause that says, I get sued. You've got to defend me in this. Okay. That's another way to shift and mitigate risk in this area. And more and more vendors in this space are seeing these kinds of asks from clients. You may or may not have the economic clout to be able to ask for that from a vendor, but that's something to think about.

Oh, that's great information too. What about policies on your website? You have to adhere to certain state laws, Terms of Use privacy policy, etc. Should there be an area that talks about ADA compliance in your policies?

I've seen some websites that will have an ADA compliance piece. While I don't believe that that is necessarily required under the law. It's not necessarily a bad practice if you have something positive to say there. Sometimes this notion of a vendor giving you a badge, an ADA compliance vendor saying my site is under review. Sometimes I've had clients who will build out a little page when they click on that badge. They'll be brought to a page that will give more information about ADA accessibility, what they're doing now to make the site accessible if there are problems contact, etc. From a legal standpoint, from just a practical business standpoint, I think that's probably not a bad idea.

Awesome. Thank you so much. I appreciate all the great information you're able to share. Is there anything else that you can think of?

The law is shifting, much like a California fault line right now, in this area. I would say that I don't think there will be any major shift away from exposure or away from liability for website access. I think the trend is a lot forward access, and I think the courts are leaning more and more in favor of access than away from it. So if I were thinking about my website or my business, I would be thinking this isn't going to go away. It is something I should deal with. On a broad brush level trending-wise, that's where things are heading.

I agree.

Yeah. I appreciate your questions and giving your viewers and audience a chance to think about this important issue. Again, my name is Steve Barron. I'm here in Chicago at Baron Harris Healey's law firm and happy to take inquiries from people. If they have an interest, they can find us on our website, which is bhhlawfirm.com.

Thank you again. I appreciate it very much.

Thanks for listening to yet another episode of cybersecurity and compliance with Craig Petronella. Listen to all of our podcasts on Apple, Google, and Spotify. Visit us online at Petronellatech.com to book a meeting with Craig about your business.