Icon of person presenting a webinar

2018 Digital Accessibility Trends – Fall Update Q&A and Webinar Resources

Written by: Kristin Heineman

Level Access CEO and Founder Tim Springer and Chief Accessibility Officer Jonathan Avila hosted our popular 2018 Digital Accessibility Trends – Fall Update webinar earlier this month.

There were a few questions during the webinar that they did not have time to address, so they have provided answers in this post. For more information, you can access the webinar slides, CART transcript, and recording here: 2018 Digital Accessibility Trends – Fall Update Webinar Resources.

Webinar Q&A

Q: Are you currently providing services for a Federal Agency as a Task Order contract?

Yes.

Q:   What are the legal ramifications of linking to inaccessible third-party content? In particular, third-party educational resources?

It depends on whether it is required material or not.  If you have to use the third-party content to enjoy the same benefits of the service or course then you will have to either provide an alternative or find a third-party site that is accessible.  If the third-party content is provided as informational only or posted by others such as a link posted to a blog comment by the general public then no.  Unfortunately, the Supplementary Advanced Notice of Proposed Rulemaking by the DOJ which covered the rationale and proposed requirements around this type of content was moved into the inactive status – it provide a useful framework for evaluating the applicability of third party content and it’s reasonable to assume that the same merits could be applied by the Office of Civil Rights of the Department of Education or Department of Justice or judges in districts where digital accessibility lawsuits are routinely brought.

Q:   How do aging users know that their devices are accessible? My 65-year-old mother has no idea that her smartphone has these features.

This is a challenge.  Many Apple stores do workshops on accessibility features. Some carriers offer packages of accessibility features for mobile devices as well.  Ultimately, though, you have to either know someone that tells you about the settings or you have to explore and read up to find them.

More broadly, there are local groups of people with visual impairments for example that meet and topics like this come up – but it’s not something you will hear from your eye doctor or even your retinologist.  There are low vision specialists who do cover some of these things if the user is referred to them such as by the department for the blind in your state.  Many people who do not classify or consider themselves to have a disability can benefit from increased contrast and increased text size.

Q:   What’s the difference between “mobile” and Smartphone subscriptions? is one a subset of the other?

Smartphone would be a subset of mobile subscriptions.  Other mobile subscriptions might include tablets, hotspots, and possibly other mobile devices such as feature phones.

Q:   Slightly off-topic question- is there a way to adjust the sensitivity on a touch screen phone?  My 83-yr old father is phone savvy but struggles to tap lightly rather than poke hard.

The iPhone does have touch accommodation settings under settings > general > accessibility > touch accommodations.  There are options for touch accommodations for duration, speed, and initial and final hit location.

Q:   What about the Marrakesh treaty, it is a global treaty that “aims to improve access to copyright-protected books for people who are blind, visually impaired.”

Yes, the Marrakesh treaty was recently ratified by the U.S. – http://www.arl.org/news/arl-news/4559-arl-celebrates-united-states-ratification-of-marrakesh-treaty#.W6l1HmhKiXY. That’s an omission from our presentation due to a limitation in size of the presentation – not import of the treaty vehicle.

Q:   Is this the one that requires a 180-day waiting period before the business has to comply? Or submit a plan?

I believe this question is about the Arizona law that is aimed at curbing drive-by lawsuits around physical ADA issues – the law appears to give between 30 to 90 days to respond to the issue depending on the situation.

Q:   Is it still 2.0 they’re seeking and not 2.1?

This question appears to be about plaintiffs seeking litigation under Title III of the ADA. Up to this point most demands have been around WCAG 2.0 but we expect to see WCAG 2.1 referenced shortly by plaintiffs.

Q:   Do you think more states will be required to post conformance to success criteria on their websites / applications?

Eventually, yes, but it’s unclear the speed with which that will occur.  California law requires WCAG 2 or subsequent for public sector. Other cities such as NYC have web accessibility laws. A list of states with website accessibility policies or procurement polices can be found at https://en.wikipedia.org/wiki/US_State_Laws_and_Policies_for_ICT_Accessibility

Ultimately, it’s a state-by-state, city-by-city kind of a thing.

Q:   Are there lawsuits by employees (not the public) for non-accessible internal (intranet) websites?

Yes, these would fall under the ADA Title I or under the EEOC.  We are starting to see more of these situations.  In many cases, organizations choose to address these complaints by providing one-off accommodations for users with disabilities rather than making the systems fully conformant to WCAG standards.  This is complex because a wide range of systems come from different vendors and organizations may not have procurement policies in place that enforce or are able to validate for accessibility conformance.  This is an area for needed capacity building. Below is an article about policy driven adoption at the state level https://www.nascio.org/pdaa

Q:   Do you know the percentage of lawsuits against public or private companies?

Seyfarth Shaw has some statistics on their ADA Title III blog: https://www.adatitleiii.com/2018/07/website-access-and-other-ada-title-iii-lawsuits-hit-record-numbers/

The exact split between private and public companies is something we – Level Access – can pull some data on, but we’d do it on an individual basis.

Q:   Do we have any info on a specific automated testing tool being used by plaintiffs?

Depends on the plaintiff’s attorney.  We’ve mostly seen free and low-cost tools in stock configurations with no interpretation of the results.  The result is lots of inaccurate testing results.  You may be able to identify the tool by looking at the wording used and compare that to the wording in free online tools to determine which tool was used.

Q:   And/or are there any cases where different testing tools’ results have been compared? I.e. one testing tool shows compliance, another does not?

There have been some comparison of testing tools in particular at accessibility-related conferences.  There is work being done at the W3C with the Accessibility Conformance Task Force which is part of the Accessibility Guidelines working Group to harmonize on a set of agreed upon outcomes for a baseline set of tests.

Q:   How have these attorney-driven lawsuits affected the public’s attitude toward people with disabilities? I’m concerned people will see the disabled as frauds.

It has created an image problem and some backlash.  That’s lead to some proposed changes to law in particular, thus far aimed at drive-by physical lawsuits, and a letter to the U.S. DOJ by Senators that have asked for clarify on applicability of the ADA to websites.

Q:   Who is the plaintiff in an attorney-driven lawsuit or a mass-scale lawsuit?

A: Typically these are named plaintiffs whose names appear on multiple lawsuits filed by a specific plaintiff’s firm.   When we look at the data we see a handful of firm filing a large numbers of suits with a small number of named plaintiffs.  There are also individuals that have each filed dozens of suits and others who have submitted hundreds of Office of Civil Rights complaints.

Q:   Is ‘the public’ even aware of the surge in accessibility lawsuits?

They are starting to be. There was a 60 Minutes segment on drive-by lawsuits.

Q:   Do you have monitoring systems for native Android and iOS apps?

Yes, for pre-production as part of the CI process. We’ve got some things that can be used in production monitoring of mobile apps but it’s limited to the hybrid components of such apps.

Q:   I’m curious about how other organizations are approaching external, third-party links. Do you link to third-party sites? If so, do you review them for accessibility etc.?

It depends if the third-party site is just provided as informational or is required to take part in or enjoy a service or privilege.  For informational only ones many governments take the approach to explicitly warn the user that they are leaving their site.  Others have a statement indicating that the links are for third party content that is provided as informational only.

Q:   Do you see a lot of risk in the public sector?

Yes.  Less than the private sector but still yes.  There is risk at the local, state, and Federal level. The risk through DOJ OCR complaints has reduced significantly, however, the threat of private litigation to states and other government bodies continues.

Q:   Does the ADA Lawsuits slide include both Title II and Title III data?

No, just Title III

Q:   So, enforcement in the education sector is expected to decline?

We expect enforcement in the education sector to decline, materially. We expect enforcement in the education sector to decline by at least a 1/3 with the vast majority of that concentrated in digital accessibility.

Q:   What do you mean by “private enforcement?” Do you mean filing lawsuits as you previously described?

Yes, private enforcement might include litigation, structured negotiations by people with disabilities, advocate, or other disability/civil rights organizations rather than action by the Office of Civil Rights at the DOJ or DOE.

Q:   Are commercial businesses required to be digitally ADA compliant in the U.S.?

Many cases from several Federal district courts have indicated where there is a nexus between a physical and online presence that the portions of the online service that allow someone to ensure services of the physical location are covered by the ADA. Across the board there has been mixed responses depending on the district.

Q:   Any movement forward with PUBLISHERS meeting digital document accessibility meeting WCAG? Burden seems to be on schools…

We’ve definitely seen movement here.  Ultimately there’s a consensus at the level of the publisher that they need to do it. The catch is schools face the actual risk for providing accessible educational material. So, will it get better? Sure. But it’s a little tricky about who is responsible for it and how that plays out in the market.

Q:   Are there any cases where different testing tools’ results have been compared? I.e. one testing tool shows compliance, another does not.

Some, none particularly good.  Basically, most people are deciding based on the reputation of the vendor and the vendor’s ability to justify their approach and be clear about what they don’t test.

Q:   Who enforces adoption of VPAT2?

U.S. Federal Agencies will generally require a VPAT Accessibility Conformance Report (ACR) for procurement of commercial off the shelf (COTS) products including products that are modified or configured COTS products.  The U.S. Federal Government must procure the most accessible product that meets the business needs of the agency.  Given that the revised standards have been in effect for 9 months most agencies are now expecting a VPAT2 ACR to report on the revised standards that are in effect.

Q:   Which EU standards support WCAG 2.1? The online resources I’ve read (such as https://www.essentialaccessibility.com/blog/en-301-549/) all mention 2.0 AA

EN301-549 v2.1.2 soon to be adopted.  https://www.etsi.org/deliver/etsi_en/301500_301599/301549/02.01.02_60/en_301549v020102p.pdf

Q:   I’d like more info on the assisted technology for cognitive disabilities like trouble reading emotions (e.g., for autistic people)

There are a number of articles on facial expression emotion detection on the topic searchable from Google such as this one https://www.mdpi.com/2227-7080/6/1/17.   IBM’s Watson also has used detection of language to determine emotion in text https://www.ibm.com/blogs/bluemix/2016/10/watson-has-more-accurate-emotion-detection/

Q:   How can individuals help lobby for needed changes? Is there a central place or website?

People can provide feedback on the specific site, calling the organization, using social media, logging bugs on public sites for things like browsers and platforms, etc. Some organizations have Disability Centers of Excellence that have special support lines for users with disabilities such as Microsoft.  People can reach out to disability rights groups and attorneys to work through non-litigation methods such as structured negotiations – see the Law Office of Lainey Feingold.

This blog post is for informational purposes only and does not constitute legal advice.