Website AccessibilityWhy Companies Should Take A Holistic Approach to Digital Accessibility

Why Companies Should Take A Holistic Approach to Digital Accessibility

Over the past several years, there has been a tremendous increase in the prevalence of digital tools, online businesses, and mobile applications.  This has led to a spike of litigation in both federal court, under Title III of the Americans with Disabilities Act (ADA), and similar state statutes, such as New York Human Rights Law and California’s Unruh Act, as users with a variety of disabilities allege challenges in accessing various components of a company’s online business.  

The Beckage Website Accessibility Team, made up of lawyers who are also web developers and web design business owners, continues to monitor federal and state filings under the ADA, which have more than quadrupled in the past seven years. While no industry is immune, we have noticed a trend of lawsuits targeting the retail and restaurant sector, as more individuals with disabilities are seeking out websites over brick-and-mortar stores, creating higher risk for online businesses with accessibility issues.

Part of the surge in litigation over the past handful of years is caused from the lack of clarity from the Department of Justice, the federal agency responsible for enforcement of the ADA. In 2017, the DOJ declined to issue clarifying regulations, contributing to continued uncertainty on clarity on what digital accessibility entailed. Hence a waive of litigation ensued and shows no signs of letting up. Thus, absent any legislation or guidance from the DOJ, now is the time for organizations for organizations to take a holistic approach to digital accessibility, taking proactive steps to make their digital platforms accessible for users with a variety of disabilities. But what does that look like in practice and why should your organization make accessibility a priority in 2021?

Current Legal Landscape

As any good business understands, it is crucial to always keep the consumer top-of-mind, and your online presence is certainly no exception. Creating a digital platform that can be used by the greatest number of consumers possible should always be the goal, and that number needs to include the 1 in 5 Americans who have a disability.

However, deciphering what exactly it means for an online business to be considered accessible under Title III of the ADA has been a constant challenge for companies, web designers, and attorneys working in the accessibility space. Despite the DOJ’s lack of clarity on this issue, the Web Content Accessibility Guidelines (WCAG) 2.1, private industry standards promulgated by the World Wide Web Consortium (W3C), are widely accepted by the industry and courts for measuring accessibility.  The WCAG standards are broken down into three “levels” of acceptability: Level A, Level AA, and Level AAA.  Level A and Level AA are where most common barriers for disabled users exist and are thus the accepted standards to achieve website accessibility.  

It is also important to note how Title III of the ADA intersects with privacy regulations. For example, while there is currently no federal data privacy law, the California Consumer Protection Act (CCPA) requires that website Privacy Policies be “reasonably” accessible to individuals using screen-reading software and other tools to access a website. This is an important piece of this comprehensive data privacy legislation and while it doesn’t address the accessibility of the rest of a business’s website, making sure your digital tools, such as web forms for data subject rights, cookie consent banners, and other similar tools on your website, are accessible to the greatest number of users makes wise sense in the spirit of this regulation.  Additionally, with a new administration in the White House, anticipate that we may see federal legislation that clarifies clarify both data privacy and accessibility standards on a national level, which would make working towards compliance and avoiding predatory lawsuits easier for companies with an online presence.

What We’ve Learned About ADA Accessibility Claims

Practically speaking, it remains unclear what having an “accessible” website means. For this reason, a very high number of ADA cases filed against online businesses are quickly settled outside of court to avoid the expense of litigating in such uncertain terrain.   

Website and mobile app accessibility claims against businesses in a variety of sectors have become a familiar occurrence.  Most of these cases have similar allegations; a disabled individual argues that they encountered multiple access barriers that denied him/her full and equal access to the goods and services offered online by a company. In most of these cases, the plaintiff has attempted to leverage screen-reading software to access the website or mobile application and claims the platform is incompatible with the assistive technology they are using. 

Other commonly made claims include improperly labeled links and pages, inconsistent placement of on-page elements, like the shopping cart, and lack of image alt-text, title elements, and other features that help blind users navigate a website. Thus, the plaintiff argues, the business has violated Title III of the ADA and related state statute, entitling the plaintiff, among other things, to injunctive relief and attorneys’ fees.   

Practical Steps for Businesses

The sheer volume of settlement agreements and cases Beckage has worked on has exposed some common themes and provided valuable insights into how online businesses can proactively address website accessibility and minimize legal risk.  We recommend the following four-prong approach:  

  1. Consult with legal tech counsel, like Beckage, to evaluate litigation risk and regulatory compliance;
  2. Have your website or mobile app audited with the protection of attorney-client privilege or with a trusted third party vendor against the WCAG Level A and Level AA standards to determine what remediation is necessary to address any existing barriers and test your website using assistive technology, such as a screen reader, to be sure all barriers have been remedied.
  3. Publish a legally-reviewed Accessibility Statement on the forward-facing website and mobile application, and work to develop internal policies, procedures, and a training program that implement regular audit and assessment of accessibility; and
  4. Operationalize accessibility within your organization, prioritizing a top-down, multi-department approach throughout your organization to building accessibility.

Keeping in mind the end goals of improving usability for individuals with disabilities and avoiding frivolous lawsuits, businesses can arm themselves with a proper plan to address their online platforms’ accessibility. From our experience, a holistic approach to digital accessibility that understands how to bring together various stakeholders and decisions makers from throughout the organization as accessibility champions is the best way to operationalize accessibility.

With former web developers and technologists on staff, Beckage is well-suited to help businesses from all sectors and industries navigate the uncertain legal landscape surrounding website accessibility. Through collaborating with in-house technologists, outside vendors, members of the disability community, and internal assistive technologies, Beckage attorneys work under privilege to conduct internal and remedial audits of client websites and mobile applications, evaluate platform compatibility, and oversee implementation of recommended remedial or accessibility-enhancement measures.  Our team can help you develop and implement a sustainable accessibility program that contemplates compliance with the WCAG guidelines and other current and future website accessibility standards and best practices.

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2020Looking Back on 2020’s Top Privacy and Cybersecurity Trends

Looking Back on 2020’s Top Privacy and Cybersecurity Trends

As 2020 comes to a close, Beckage looks back on the ways this difficult and unprecedented year impacted the data privacy and cybersecurity landscape both domestically and across the globe.

Enhanced Privacy Challenges and Concerns Due to Covid-19

In response to the COVID-19 pandemic, businesses around the globe made a major pivot to online or virtual operations early this year. An intentional focus on data protection and a solid understanding of the regulatory landscape is a legal requirement that demands the integration of data protection up front in any network design or business practice. The increase in exposure of company assets made it necessary to implement a variety of technical safeguards. Companies still had to meet the compliance milestones of the NY SHIELD Act and California’s Consumer Protection Act (CCPA) while dealing with new privacy challenges caused by a distributed workforce and a global health pandemic. Beckage reminds organizations of the importance of revisiting their readiness through business continuity, incident response, and more expansive administrative, technical, and physical safeguards when shifting to a work-from-home model and recommends continued assessment of your company’s privacy pitfalls in this ever-shifting legal landscape.

Increased Ransomware and Cyberattacks

With rapid changes in organizational operations caused by the COVID-19 pandemic, attackers became more sophisticated in their strategies and unleashed several unrelenting, simultaneous attacks on service providers and the organizations they serve in 2020. Victims of recent cyber attacks, such as the SolarWinds campaign carried out in December, include government agencies, healthcare providers, consulting agencies, and , technology, telecom, and oil and gas companies. In many of these campaigns, attackers were able to gain access and move freely throughout an organization’s server, installing additional software, creating new accounts, and accessing sensitive data and valuable resources while remaining largely undetected. In response to the uptick in data incidents this year, the Beckage Incident Response Team recommends organizations implement several preventative steps to safeguard their organization to help minimize legal risk.

Patient Access Rights and Interoperability

Recent developments in 2020 concerning patients’ right to access health information to implement interoperability and record access requirements intend to help patients obtain access to health records and payment data to make informed decisions about their healthcare. The CMS Proposed Rule and the OCR Proposed Rule represent a complete overhaul of well-established standards and an introduction of new and highly technical requirements with healthcare compliance. The experienced Health Law Team at Beckage can help to distill these lengthy and complicated rules so organizations can understand practical implications on daily operations.

Increased International Focus on Consumer Privacy

On the heels of EU’s General Data Protection Regulation (GDPR), many countries followed suit by establishing legal frameworks for governing how organizations collect, use, and store their citizens’ personal data. One example is Brazil’s Lei Geral de Proteção de Dados (LGPD), which went into effect in August of 2020. This general data protection law, which closely mimics the GDPR, places strict requirements on organizations that process Brazilian citizen’s personal data.

At the same time, Europe continued to elevate its enforcement of the GDPR, with major decisions from various member state Data Protection Authorities, the European Court of Justice (ECJ), and the European Data Protection Board (EDBP). The most impactful for businesses across the globe was the ECJ’s decision in Schrems II, which invalidated the EU-US Privacy Shield and called into question the long-term viability of the Standard Contractual Clauses (SCCs) to transfer data from the EU to the US. In 2021, companies should closely monitor the evolving guidance on international data transfers and be prepared to mitigate risk of global data transfers.

Beckage’s Global Data Privacy Team expects continued adoption of data protection regulations across many regions, and an emphasis on creating global security and privacy compliance programs in the year ahead.

Uptick in ADA Litigation

This past year, the Beckage Accessibility Team has witnessed a drastic increase in litigation under Title III of the Americans with Disabilities Act. On average, about eight new lawsuits are filed a day by disabled individuals alleging unequal access to goods and services provided on a company’s digital platforms. While the Department of Justice (DOJ) has consistently held that the ADA applies to websites and mobile apps, they have failed to clarify the precise requirements for a business to be deemed compliant. This has prompted a wave of litigation by plaintiffs’ who claim a website or mobile app’s incompatibility with assistive technology, like screen-reading software, has denied them full access to and equal enjoyment of the goods, services, and accommodations of the website, therefore violating the ADA. Most of these lawsuits are settled quickly out of court to avoid litigating in such uncertain legal terrain.

Beckage handles the defense of website accessibility lawsuits as well as assists companies in navigate pre and post-suit settlement agreements for this unique area of the law.  Beckage also works with clients under privilege to conduct internal and remedial audits of client websites and mobile applications, evaluate platform compatibility and oversee implementation of recommended remedial or accessibility-enhancement measures.

California Consumer Protection Act (CCPA)  

Enforcement of California’s comprehensive California Consumer Privacy Act (CCPA) began on July 1, 2020 and has brought a range of plaintiff related lawsuits under its private right of action provision expanding California breach laws. For a data breach to be actionable, the information accessed must be identified as personal information, as narrowly defined by California’s data breach notification law. Recently, in November 2020, the Consumer Right To Privacy Act (CRPA) ballot initiative was passed, creating additional privacy rights and obligations pertaining to sensitive personal information that will go into effect. CPRA also expands data breach liability created by the CCPA, adds a private right of action for unauthorized access that permits access to an account if the business failed to maintain reasonable security, and imposes data protection obligations directly on service providers, contractors, and third parties. Beckage urges businesses who operate in or serve California citizens to continue to follow CCPA developments and carefully monitor related litigation in the coming months.

Emerging Technologies

The recent expansion of the Illinois Biometric Information Privacy Act (BIPA) has resulted in numerous class actions suits against organizations alleged to have collected plaintiffs’ biometric data. With the expanding use of biometric equipment, these claims often allege defendants obtained plaintiffs’ biometric data without complying with the BIPA’s notification and consent requirements. Upcoming class suits may address the issue of BIPA having an extraterritorial effect when bringing claims against out of state vendors.

Similarly, computers that manipulate the media, known as deep fakes, advance the dangers of influenced perceptions. The advancements of deep fakes are giving rise to laws regarding defamation, trade libel, false light, violation of right of publicity, or intentional infliction of emotional distress. Sophisticated tech lawyers can assist in determining rights and technological solutions to mitigate harm. As former tech business owners, Beckage lawyers want to drive innovation with use of these new and emerging technologies while understanding standards and laws that may impact such development. Beckage recommends that companies proactively mitigate the risks associated with collecting biometric information and deep fakes to prevent legal repercussions and defamation. 

Key Takeaways

2020 proved to be an unpredictable year in more ways than one. The COVID-19 pandemic forced companies to rapidly adapt to new privacy and data security challenges caused by a distributed workforce, emerging technologies, and an increased focus on ecommerce with in-person shopping and events. As we move towards 2021 with no definitive end to the pandemic in sight, it is crucial for companies to prioritize data privacy and cybersecurity initiatives by consulting qualified legal tech experts who can help navigate the uncertainty next year will bring. Beckage attorneys can assist in creating, implementing, and evaluating robust data security and privacy infrastructures that will help put your business in a position to tackle all the challenges 2021 has in store.

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AccessibilityOnline Accessibility Act Seeks to Clarify Accessibility Guidelines for Private Businesses’ Digital Presence

Online Accessibility Act Seeks to Clarify Accessibility Guidelines for Private Businesses’ Digital Presence

The Beckage Accessibility Team is closely following bipartisan legislation introduced into the U.S. House of Representatives on October 2, 2020. The Online Accessibility Act, sponsored by Congressmen Lou Correa (D-CA) and Ted Budd (R-NC), would add language to the existing Americans with Disabilities Act (ADA) and provide much-needed clarity on the legal requirements for consumer-facing websites and mobile applications to be considered accessible to individuals with disabilities, particularly blind and visually-impaired persons.

If passed, this legislation would have clear benefits for both disabled individuals and online businesses that operate consumer websites, defined as “any website that is purposefully made accessible to the public for commercial purposes.” The Online Accessibility Act would limit the number of predatory lawsuits filed against business owners while helping them improve accessibility for their disabled customers.

Beckage continues to monitor the state and federal dockets daily and the number of lawsuits that are filed continue at record speed.  On average we see about eight new lawsuits a day. These website accessibility lawsuits are filed by plaintiffs alleging unequal access to services on companies’ digital platforms due to incompatibility with assistive technology, like screen-reading software. While the Department of Justice (DOJ) has consistently held that the ADA applies to websites and mobile apps, it has fallen short of clarifying the precise requirements, leaving businesses confused as to whether their digital platforms are compliant. As result, a very high number of these cases are settled out of court to avoid gambling with high litigation costs in such uncertain legal terrain.

“This bill solves the problem by providing guidance to businesses on how to bring their websites into compliance. If our bill is passed, job-creators will be able to avoid costly lawsuits and be given a roadmap for how to help their disabled customers access online content,” said Rep Budd in a statement about the Act.

“We are optimistic that this bill will provide some much-needed clarity in the ADA legal landscape,” says Beckage Accessibility Team Leader, Kara Hilburger. “It is so important to have universal standards for accessibility to level the playing field and help businesses best serve their customers while avoiding lawsuits.”

This legislation is coming at a crucial time given the rapid increase in online shopping due to the COVID-19 pandemic, as consumers choose to avoid brick-and-mortar stores in favor of e-commerce options. However, the future of the Online Accessibility Act is still uncertain given its introduction during a particularly polarized election season and an unpredictable political landscape hanging in the balance.

“Beckage continues to advise clients to be proactive when it comes to website accessibility,” Hilburger confirmed.  “There are many low-cost, high impact steps companies can take immediately, such as publishing an Accessibility Statement, that can place them in a legally defensible position while they work to implement accessibility by-design into their new online products and offerings.”   

Beckage remains hopeful that the Online Accessibility Act will gain traction and provide much needed relief for the business community.  Beckage works with businesses from all sectors and industries as they navigate the uncertain legal landscape surrounding website accessibility.  Through collaborating with in-house technologists, outside developers, members of the disability community, and internal assistive technologies, Beckage attorneys work under privilege to conduct internal and remedial audits of client websites and mobile applications, evaluate platform compatibility, and oversee implementation of recommended remedial or accessibility-enhancement measures.  Our team helps companies develop and implement a sustainable accessibility programs that contemplates compliance with the WCAG guidelines while monitoring the development of website accessibility standards and best practices that can protect your business.  

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WebsiteWebsite Accessibility Under the ADA: What You Need to Know

Website Accessibility Under the ADA: What You Need to Know

Many of us are familiar with the Americans with Disabilities Act, otherwise known as the ADA. It is a landmark civil rights legislation that was signed into law by President George H.W. Bush in 1990. It works to guarantee that individuals with disabilities have equal opportunities to participate in mainstream American life, from finding employment opportunities to shopping at the mall or entering a public library.  But “mainstream” life has changed a lot over the past 30 years, especially with the tremendous growth we have seen with the advent of the internet. More and more companies with or without brick and mortar stores have some type of online presence. As such, the past few years there has been a tremendous amount of litigation surrounding how the ADA should be applied to websites.  

Current Status of the ADA

When the ADA was first enacted, Congress could not have anticipated just how far the internet would reach into everyday life. As a result, the ADA focuses on accessibility and discrimination issues that would happen in person—for example, standards for accessibility for brick-and-mortar business locations and employment setting. The ADA does not specifically provide guidance regarding the accessibility standards applicable to internet or online businesses nor does it expressly exclude online businesses either.  

Title III of the ADA requires that every owner, lessor, or operator of a “place of public accommodation” provide equal access to users who meet ADA standards for disability. Over more recent years, the argument arose that this concept applied to websites, prompting a wave of litigation by plaintiff’s claiming that accessibility barriers experienced on a website violated the ADA because it denied them full access to and equal enjoyment of the goods, services, and accommodations of the website. But with no formal guidelines or laws in place outlining what online ADA compliance actually means for online businesses (with or without a connection to a brick-and-mortar business), it has been largely left up to the courts to decide what compliance looks like.  

As we reported at the end of last year, the United States Supreme Court denied a petition filed by the pizza conglomerate Domino’s, sending a relatively clear statement that Title III of the ADA does in fact apply to websites. But the Supreme Court’s denial of cert still leaves businesses hoping for actual guidelines in limbo, waiting for either another case to reach the Supreme Court or the Department of Justice to issue guidance in this area.

Recommended Steps for Addressing Website Accessibility  

In the meantime, Beckage has proactively monitored this area of the law over the past few years and recommends clients take intentional and protective measures to address website accessibility sooner rather than later. As either part of litigation defense strategy or proactive website remediation measures, we generally recommend implementing a comprehensive, phased approach to website accessibility, including the following measures:  

Working with Beckage or a trusted third-party vendor that we together vet and retain to perform an independent website-accessibility audit for conformance with the Web Content Accessibility Guidelines (WCAG 2.1), the prevailing set of guidelines that set forth website accessibility standards.  

Implementing a forward-facing website accessibility notice that is prominently and directly linked from the website home page that provides individuals with disabilities who are experiencing technical difficulties the ability to request assistance. Those staffing the phone line and receiving e-mails regarding this should be knowledgeable about the statement and be trained on how to help users that are experiencing technical difficulties navigating the website.

Deploying an internal website accessibility policy that guides the organization’s decision making and processes and procedures for designing, developing, and procuring accessible content on the website. Most websites are regularly updated and modified and accordingly there should be procedures in place as part of this internal policy for regularly reviewing the website for new accessibility barriers.  

We also recommend regularly testing your website with assistive technology used by the disability community to access your content such as the JAWS screen reader. This process can provide valuable intel on potential and unforeseen barriers that may occur to users.  

Even without specific guidelines or a clear understanding of what compliance looks like, there are several low-cost, high impact steps companies can take to address website accessibility.  We recommend clients work on website accessibility alongside their larger public-facing disclosure compliance work, such as regularly updating their Website Privacy Policy and Terms of Use to comply with the evolving paradigm of privacy legislation and regulations such as the California Consumer Protection Act (CCPA) and GDPR.  While the legal standards of website accessibility are still murky, the technology to support accessibility online is only getting stronger. Beckage’s Accessibility Team, made up of web developers and a former web design business owner, is here to help you navigate ADA website compliance and make your online presence more welcoming and accessible to everyone. From litigation defense to proactive website remediation, our experienced team is uniquely positioned to partner with your business and assist with your ADA compliance efforts.  

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Looking Back: Top Privacy and Cybersecurity Headlines from 2019Looking Back: Top Privacy and Cybersecurity Headlines from 2019

Looking Back: Top Privacy and Cybersecurity Headlines from 2019

In the fast-paced, ever-evolving world of privacy and cybersecurity law, gathering the biggest news from 2019 was no small feat – from new laws and landmark cases, to major technological developments and international guidelines, it was a busy year for anyone trying to stay up to date. But Beckage has narrowed down the top privacy and cybersecurity stories that shaped last year:

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