{"id":1067,"date":"2017-11-16T15:42:38","date_gmt":"2017-11-16T15:42:38","guid":{"rendered":"https:\/\/albanknews.com\/?p=1067"},"modified":"2017-11-17T16:27:24","modified_gmt":"2017-11-17T16:27:24","slug":"ada-website-accessibility-update","status":"publish","type":"post","link":"https:\/\/albanknews.com\/?p=1067","title":{"rendered":"ADA Website Accessibility Update\u00a0"},"content":{"rendered":"

The recent wave of ADA class actions submitted by serial plaintiff attorneys\u00a0to enforce the WCAG 2.0\u00a0standard showed initial signs of\u00a0abating due in part to the successful efforts from a number of banker associations and state attorneys general.\u00a0One\u00a0state bankers\u00a0association successfully\u00a0reached an agreement with a disability rights group\u00a0to release member banks from ADA claims related to electronic banking services. In Nevada, the attorney general is intervening on a number of ADA lawsuits filed in the state by asking the judge to set aside and dismiss the cases. Other state banker associations and AGs are following suit to help mitigate frivolous lawsuits.\u00a0\u00a0\u00a0<\/span><\/p>\n

The SBA and AG interventions largely rely on the state barratry laws which prohibit frivolous lawsuits.\u00a0Business advocates\u00a0argue the lawsuits are formulaic, follow the same template, and designed to harass and intimidate defendants. In a nutshell, they argue these lawsuits are nothing more than a shakedown to extract attorney fees.\u00a0\u00a0<\/span><\/p>\n

These shakedowns often work, as we saw back in 2012 with the ATM lawsuits, where many banks paid the ransom rather than fight\u00a0a court battle.\u00a0While\u00a0fighting\u00a0is an option, it is expensive and doesn\u2019t always work.\u00a0A recent case in the Southern District of Florid,\u00a0Gil v. Winn-Dixie stores, inc.<\/i>, is one such example.\u00a0<\/span><\/p>\n

The plaintiff claimed that Winn-Dixie, a\u00a0chain of grocery stores, did not have an ADA accessible website.\u00a0In particular,\u00a0the plaintiff alleged\u00a0the JAWS and NVDA software programs (the two most common software programs used by disabled persons) used by the plaintiff did not function with Winn-Dixie\u2019s website\u00a0and therefore inaccessible to disabled persons.\u00a0The case\u00a0hinged on\u00a0two issues: 1) whether a website is a \u201cplace of public accommodation\u201d and therefore subject to the ADA and 2) if applicable, what standards apply to the website.\u00a0\u00a0<\/span><\/p>\n

The 11th<\/span>\u00a0Circuit, the jurisdiction of the Florida District Court, has yet to\u00a0decided on the first issue of whether the ADA applies to websites.\u00a0Other\u00a0circuits are split on this issue. Generally, however,\u00a0courts consider\u00a0websites\u00a0subject to the ADA when there are goods or services available through that\u00a0company\u2019s\u00a0website and the company has a brick and mortar storefront.\u00a0\u00a0The Florida court found that since the website served as an entry point for its physical\u00a0stores that the ADA would apply.\u00a0\u00a0\u00a0<\/span><\/p>\n

More than just an entry point, a companies online presence is often more important than their physical location to the point where if you are not online, you may as well not exist to a large portion of the population. This point is what the court seems to key in on, that the physical and virtual space a company occupies is indistinguishable from each other.\u00a0\u00a0<\/span><\/p>\n

The second issue is a bit more nuanced, but in the end, the court\u00a0falls short of\u00a0ruling\u00a0that the WCAG 2.0 is the definitive standard or provides any specific ruling on what the standards should be.\u00a0The terms of the ruling, however, do\u00a0compel\u00a0Winn-Dixie to comply with the WCAG 2.0 standards for their website.\u00a0\u00a0The\u00a0unpublished\u00a0decision is not binding to any company outside the Southern District of Florida, but it does provide some persuasive authority for other lawsuits that may spring up in different states.\u00a0\u00a0<\/span><\/p>\n

The Central\u00a0District\u00a0of California chimed in on the subject not long after the Florida decision. The plaintiff in the California case sued Hobby Lobby for lack of website accessibility using the JAWS software program.\u00a0 Hobby Lobby moved to dismiss the case\u00a0based on the fact that no\u00a0standard had yet been set in regards to website\u00a0accessibility. The court rejected the motion to dismiss and allowed the case to move forward. The court argued\u00a0that the lack of\u00a0definitive standards does not\u00a0exempt Hobby Lobby from complying with the ADA.\u00a0\u00a0<\/span><\/p>\n

One point that both the Florida and California court noted was the relative ease and low cost of complying with the WCAG 2.0 standards. The plaintiff in the Winn case argued, to which the court agreed, that the cost of compliance with the WCAG 2.0 standard was a drop in the bucket compared to the overall budget spent on the website. The plaintiff argued that the website could easily be upgraded for under $40,000, compared to the $7 million they recently spent on upgrading\u00a0the cite\u00a0without giving any thought to accessibility. The California court also pointed out the relatively low cost of compliance.\u00a0\u00a0<\/span><\/p>\n

The\u00a0Department of Justice did not\u00a0do us any\u00a0favors by\u00a0failing to address\u00a0ADA website\u00a0standards in\u00a0their upcoming regulatory agenda.\u00a0The DOJ had previously indicated that guidance would be forthcoming in 2018. It doesn\u2019t appear to be the case anymore. The proposed rule issued back in 2010 (75 FR 43460) remains just that \u2013 proposed.\u00a0\u00a0<\/span><\/p>\n

While normally banks would applaud restraint from agencies issuing any more guidance, this is an area for which banks, and other companies would actually benefit from some clarity. Uncertainty will continue along with lawsuits until we have clear guidance.\u00a0<\/span><\/p>\n

Notwithstanding the DOJ\u2019s inaction, the slow pace of litigation seems to be pushing common law towards the WCAG 2.0 standard.\u00a0\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

The recent wave of ADA class actions submitted by serial plaintiff attorneys\u00a0to enforce the WCAG 2.0\u00a0standard showed initial signs of\u00a0abating due in part to the successful efforts from a number of banker associations and state attorneys general.\u00a0One\u00a0state bankers\u00a0association successfully\u00a0reached an agreement with a disability rights group\u00a0to release member banks from ADA claims related to electronic banking services. In Nevada, the attorney general is intervening on a number of ADA lawsuits filed in the state by asking the judge to set aside and dismiss the cases. Other state banker associations and AGs are following suit to help mitigate frivolous lawsuits.\u00a0\u00a0\u00a0 The […]<\/p>\n","protected":false},"author":1,"featured_media":1070,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":true,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[19,25],"tags":[],"class_list":["post-1067","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-breaking","category-industry-reports","has_thumb"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/albanknews.com\/wp-content\/uploads\/2017\/11\/compliance-alliance.png?fit=800%2C800&ssl=1","jetpack_shortlink":"https:\/\/wp.me\/p4Y3P2-hd","jetpack_sharing_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/posts\/1067","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/albanknews.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1067"}],"version-history":[{"count":2,"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/posts\/1067\/revisions"}],"predecessor-version":[{"id":1071,"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/posts\/1067\/revisions\/1071"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/media\/1070"}],"wp:attachment":[{"href":"https:\/\/albanknews.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1067"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/albanknews.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1067"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/albanknews.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1067"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}