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.

WCAG 2.1’s Purpose and Key Features

The WCAG 2.1 is intended to provide a better web experience for three major groups of individuals:  users with cognitive or learning disabilities, users with low vision, and users with disabilities using mobile devices.  To achieve that goal, WCAG 2.1 builds upon WCAG 2.0, retaining all of WCAG 2.0’s Success Criteria and adding 17 new Success Criteria – 5 at Level A, 7 at Level AA, and 5 at Level AAA.  (Please note:  (i) the W3C does not recommend Level AAA conformance be required as a general policy for entire sites because it is not possible to satisfy all Level AAA Success Criteria for some content; and (ii) the current legal landscape sets website accessibility compliance at the Level A and AA conformance levels.)  Entities covered by Title III of the Americans with Disabilities Act (“ADA”), thus focusing on complying with WCAG 2.0/2.1 conformance levels A and AA to make their websites accessible, should be aware that, of the 12 Level A and AA Success Criteria new to WCAG 2.1, there a few notable guidelines that will specifically apply to desktop websites, such as:

  • Requiring the purpose of input fields requesting personal information to be identifiable by assistive technologies;
  • Providing a minimum color contrast ratio for non-text content (including all visible focus indicators) of 3:1;
  • Ensuring individuals with disabilities who choose to override spacing can read page text;
  • Modifying keyboard shortcuts so that individuals with disabilities can turn off or remap the shortcut using a non-printable keyboard character (e.g., Ctrl, Alt, etc.); and
  • Providing status messages (such as, shopping cart updates) that can be presented to the user by assistive technologies without receiving focus.

What WCAG 2.1 Means For Those Currently Complying With WCAG 2.0

As noted above, while formal website accessibly regulations governing all sectors of private business have not been adopted by the U. S. Department of Justice (“DOJ”) (and current Trump administration policies suggest that formal regulations will not be adopted in the near-term future), substantial conformance with WCAG 2.0 Levels A and AA has been considered the default standard cited to in the majority of recent litigations and settlement agreements with private plaintiffs, advocacy groups, and government regulators (e.g., DOJ).  In its abstract, the W3C notes, “The publication of WCAG 2.1 does not deprecate or supersede WCAG 2.0.  While WCAG 2.0 remains a W3C Recommendation, the W3C advises the use of WCAG 2.1 to maximize future applicability of accessibility efforts.”  Therefore, as WCAG 2.1 gains more exposure we expect that it will quickly begin to replace WCAG 2.0 as the default standard cited to in future website accessibility litigations and settlement agreements.

Companies that are currently required to conform with WCAG 2.0 (e.g., due to a settlement agreement, internal policy, etc.) should continue their efforts to achieve that required level of accessibility, however, where possible, they should also consider incorporating the new elements added to WCAG 2.1 to the extent feasible (and going forward as new content is added) as a best practice.  (The W3C joins in this recommendation.)  As WCAG 2.1 inherited WCAG 2.0’s requirements and overall structure and frame work, companies will be able to update web content to meet the WCAG 2.1 without losing conformance with WCAG 2.0 (as the backward compatibility built into WCAG 2.1 means content that conforms to WCAG 2.1 also conforms to WCAG 2.0).  That said, given that WCAG 2.0/2.1 remain privately authored guidelines as opposed government-mandated regulations (and, as such, a handful of courts have refused to specifically impose WCAG 2.0 as the required means of complying with website accessibility obligations), we would be surprised to see courts require companies already complying with WCAG 2.0 to immediately require compliance with WCAG 2.1.

WCAG 2.1 Is Not Quite the Update Places of Public Accommodation Have Been Looking For

While the publication of WCAG 2.1 will likely receive a reasonable amount of fanfare, once the dust settles and everyone has had time to fully appreciate its content, WCAG 2.1 will likely be considered a let down by both businesses and individuals with disabilities.  As WCAG 2.1 was being drafted over the past four years, the W3C would regularly offer open comment periods to the public.  In the comments received, a large number of respondents requested, even moreso than adding new Success Criteria, that WCAG 2.1 provide updates to the original WCAG 2.0 requirements to help developers apply these guidelines to the newest types of technologies (e.g., touch screen, mobile devices, apps, responsive technology, etc.).  Unfortunately, due to time limitations, such updates are not included in WCAG 2.1 and the original WCAG 2.0 Success Criteria text remains largely unchanged.  The W3C has publically acknowledged this shortcoming noting the WCAG 2.1 advancements are “incremental” and stating, “[m]any people hoped WCAG 2.1 would provide more new guidance than it does.  The requirement of compatibility with WCAG 2.0 along with the aggressive timeline limited what could confidently be added to it. WCAG 2.1 provides important and timely guidance but is still only a step—the Working Group expects to develop another dot-release, WCAG 2.2, to expand the new coverage even further. WCAG 2.2 may be developed under a similar timeline and requirements set than WCAG 2.1 was, though we plan to refine the process to address process challenges experienced during the development of WCAG 2.1.”  Therefore, at this time, companies looking for additional guidance regarding how to apply the WCAG 2.0 requirements using modern programming and design techniques and/or to mobile devices/apps should continue to refer to other sources of  guidance such as:  

Looking Forward

While an additional dot release of WCAG 2 (WCAG 2.2) may be published in the future, the next major version update to WCAG will be WCAG 3.0 (also known as project “Silver”).  Currently, WCAG 3.0 is scheduled for release in 2021 and is intended to be a much more inclusive set of guidelines that are easier to understand and implement.  We will provide additional information on WCAG 3.0 developments as they become available.

Additional Information and Resources

In anticipation of the WCAG 2.1 release, the W3C has completely updated its website to create a helpful, easy to use, interface intended to assist website developers with meeting the WCAG 2.0/2.1 guidelines.  This new information provided on the updated W3C website includes: a list of transcription services (for creating videos with audio descriptions), WCAG 2.0/2.1 tutorials, and information for applying WCAG 2.0/2.1 to mobile apps.   Please see https://www.w3.org/WAI/ for more information.

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 hospitality industry: “As the ADA Turns 27, Recent Developments Suggest No End to Website Accessibility Lawsuits.”

Following is an excerpt:

Today marks the 27th Anniversary of the Americans with Disabilities Act (ADA).  Unfortunately for businesses, two recent developments in the context of website accessibility suggest that there is no reason to celebrate and every reason to believe the ever-increasing wave of demand letters and lawsuits in this area will continue unabated.

First, in Lucia Marett v. Five Guys Enterprises LLC (Case No. 1:17-cv-00788-KBF), the U.S. District Court for the Southern District of New York has finally issued a decision directly speaking to the applicability of Title III of the ADA (Title III) to websites, denying Five Guys’ motion to dismiss, and holding that Title III does indeed apply to websites.  Facing a class action lawsuit brought by serial plaintiff, Lucia Marett, Five Guys sought to dismiss the claim that its website (which, among other things, allows customers to order food online for delivery or pick up at its brick and mortar stores) violated Title III and related state/local statutes because it is inaccessible to the blind, on the grounds that Title III does not apply to websites and, even if it did, the case was moot because Five Guys was in the process of updating its website to provide accessibility.  The Court rejected Five Guys’ arguments.  Citing both the text and the broad and sweeping purpose of the ADA, the Court held that Title III applies to websites – either as its own place of public accommodation or as a result of its close relationship as a service of Five Guys’ restaurants (which the court noted are indisputably public accommodations under Title III).  …

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 hospitality 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 hospitality 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, attorney 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 hospitality industry: “Recent Decisions Reinforce That Accessible Technology Claims Are Not Going Away.”

Following is an excerpt:

As businesses continue to compete to provide customers and guests with more attractive services and amenities, we have seen increased utilization of technology to provide those enhanced experiences.  However, in adopting and increasingly relying on new technologies such as websites, mobile applications, and touchscreen technology (e.g., point of sale devices, beverage dispensers, check-in kiosks) accessibility is often overlooked because of the lack of specific federal standards in most contexts. The two recent decisions discussed below – one in New York and the other in California – do just that.

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 hospitality 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.

For those who have been eagerly anticipating the release of the U.S. Department of Justice’s proposed website accessibility regulations for public accommodations keyboard-4x3_jpgunder 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.

Unfortunately for businesses across virtually all industries – including retail, hospitality & lodging, sports & entertainment, financial services, healthcare, and academia – places of public accommodation remain left to confront the issue of website accessibility without definitive standards adopted by the regulators.  This development is particularly frustrating because despite this delay, regulators at the federal and state level, advocacy groups, and private plaintiffs continue to aggressively pursue claims alleging that inaccessible websites violate Title III of the ADA and equivalent state accessibility laws.  Indeed, recent settlement agreements with DOJ have seen an increased focus on website accessibility (as well as the addition of mobile applications) and at the state level regulators are increasingly pursuing self-initiated compliance actions focused on allegations of inaccessible technology (including websites).

Despite the lack of formal regulations, companies seeking to assess the accessibility of their websites do have guidelines to look to that have obtained near-universal support.  Regulatory efforts to date (e.g., this past winter’s Notice of Proposed Rulemaking to revise and update Section 508 of the Rehabilitation Act), recent settlements with DOJ and state regulators, and testimony during various stages of recent rulemaking efforts all point to the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (at the Level A and AA) as the appropriate measure of an accessible website.  Indeed, this sentiment was expressly echoed by DOJ during a presentation last month at the National ADA Symposium in Atlanta, Georgia.

For companies looking to explore this issue, assess their risk of exposure, and take steps to minimize their susceptibility to investigations or litigations there are clear steps to take.  First, websites should be audited – preferably under the protection of privilege – for compliance with WCAG 2.0 Level A and AA using both a user-based and programming-based dual approach.  Automated tools, in and of themselves, are insufficient.  Second, website accessibility policies – and practice and procedures to assist in their implementation – should be drafted and adopted to help manage the issue in the present and on a going forward basis.  Third, the necessary parties should be trained on these policies, practices, and procedures.  Finally, accessibility needs to become an integrated part of each company’s infrastructure and decision-making processes.  While these concepts may seem novel in the context of accessibility, most companies have already confronted analogous issues in the context of data privacy and security issues over the past decade.

 

 

Our colleague Joshua A. Stein authored Epstein Becker Green’s recent issue of its Take 5 newsletter.   This Take 5 highlights five recent developments and future trends under Title III that places of public accommodation should keep their eyes on in 2015.

  1. Website Accessibility
  2. Accessible Point-of-Sale Devices and Other Touchscreen Technology
  3. Movie Theater Captioning & Audio (Narrative) Description
  4. The Availability of Sign Language Interpreters at Health Care Facilities
  5. “Drive By” Design/Construction Lawsuits

 Read the full newsletter here.