The ADA and Website Compliance

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1 The Iowa State Bar Association s ecommerce & Intellectual Property Law Sections presents 2016 Intellectual Property Law & ecommerce Seminar The ADA and Website Compliance 8:30 9:00 am Presented By David Nelmark Belin McCormick, PC 666 Walnut St., Ste Des Moines, IA Phone: Friday, December 2, 2016

2 The ADA and Website Compliance Iowa State Bar Association E-Commerce Seminar December 2, 2016

3 Is My Client s Website ADA- Compliant? Probably Not. Web Content Accessibility Guidelines (WCAG) 2.0 AA Guidelines https://www.w3.org/tr/wcag20/

4 WCAG Principles Principle 1: Perceivable - Information and user interface components must be presentable to users in ways they can perceive. Principle 2: Operable - User interface components and navigation must be operable.

5 WCAG Principles Principle 3: Understandable - Information and the operation of user interface must be understandable. Principle 4: Robust - Content must be robust enough that it can be interpreted reliably by a wide variety of user agents, including assistive technologies.

6 What Does Accessibility Mean? Accessible to: Hearing-Impaired Visually-Impaired Mobility Challenges Intellectual Difficulties Compatible with: Assistive Technologies

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11 Does It Need to Be Accessible? Is the Company Covered by the Americans With Disabilities Act (ADA)? Title I Employment Title II Government Title III Places of Public Accommodation

12 Employment Reasonable Accommodations to: Employees Job Applicants Potential Issues Include: Document Management Systems Intranet Exchange of Information Online Reviews

13 Government Government Entities Federal State Municipal Public Education Institutions

14 Places of Public Accommodation U.S.C (a): No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

15 Places of Public Accommodation 42 U.S.C (7): The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce (A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; (B) a restaurant, bar, or other establishment serving food or drink; (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

16 Places of Public Accommodation (D) an auditorium, convention center, lecture hall, or other place of public gathering; (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (G) a terminal, depot, or other station used for specified public transportation;

17 Places of Public Accommodation (H) a museum, library, gallery, or other place of public display or collection; (I) a park, zoo, amusement park, or other place of recreation; (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

18 Does It Need to Be Accessible? Where is the company located? What do visitors do on the website?

19 Issue By Federal Judicial Circuit

20 Issue By Federal Judicial Circuit Nat l Ass n of the Deaf v. Netflix, 869 F. Supp. 2d 196, (D. Mass. 2012). Netflix s watch-instantly video-streaming service was a place of public accommodation, even though only accessible from private residences. Cullen v. Netflix, 880 F. Supp. 2d 1017, (N.D. Cal. 2012). Web-only internet service has no nexus to a place of public accommodation within the meaning of the ADA.

21 Issue By Federal Judicial Circuit ADA passed in World Wide Web became publicly accessible in 1991.

22 Issue By Federal Judicial Circuit No United States Supreme Court Ruling No Ruling from Eighth Circuit Court of Appeals North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri, and Arkansas Ellitt v. U.S.A. Hockey, 922 F. Supp. 217, 223 (E.D. Mo.1996). Winslow v. IDS Life Ins. Co., 29 F.Supp.2d 557, (D. Minn. 1998). Hutcheson v. JPMorgan Chase Bank, N.A., 2015 WL (W.D. Mo. Aug. 28, 2015).

23 Dept. of Justice Title II Expected 2016 Title III Expected 2018 Position Pretty Clear: Defendant Netflix is a public accommodation that offers its Watch Instantly and other services to the public. As such, Netflix is subject to title III of the ADA, even if it has no physical structure. Netflix falls within the twelve enumerated categories of public accommodations, and Congress, when passing the ADA in 1990, intended to cover advances in technology, such as the advent of the Internet.

24 What is a Nexus? What do visitors do on the website? E-Commerce In-Store Pickup Delivery Online Registration/Ticketing Interactive Technical Support

25 Should I Make It Accessible? If creating a website, yes. With an existing website, maybe.

26

27 Does It Really Matter? Private Litigation Injunctive Relief Reasonable Costs and Attorneys Fees 2,719 cases in 2013; 4,435 cases in 2014 Department of Justice Monetary Penalties ADA Trolls

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29 Proposed Settlement Terms Pay Attorneys Fees and Expenses Implement WCAG 2.0 Level AA Compliance with DOJ Title III Guidelines

30 Past Settlements/Consent Decrees 2014 H&R Block $100, Disney $1,403, Florida State University $150, Target $6,000,000

31 David W. Nelmark (515)

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