January Live Q&A

Transcript for Live Q&A

Just trying to pull up those list of questions. I'm not sure if Lori, I'm under Q&A, I don't see the questions coming up. But I think we do. Let's see, we have some maybe not in the chat, but I might have some that Lori can email over to me if we want to just start on with some of the questions. And if you guys on our panel feel like you're the appropriate ones to answer these questions then certainly feel free to jump on. Let me see if I can pull up some of the questions that people had.

One of the questions says in the recent AccessibilityPlus report, there was a stat on repeat lawsuits, i.e. if you've been sued once there's a greater risk, you'll get sued again. Do you think that settling versus going to court impacts your risk of getting sued and I'll obviously let you guys, especially you attorneys, jump in.

But I guess my answer would be, you know, I always think it is a good idea to try and settle particularly as quickly as possible just because, you know, once something gets into litigation, the costs are going to be higher.

But there is certainly the danger that once you settle, you may be prone to depending on the depth of the release. You may be prone to follow up lawsuits if you don't continue to abide by the terms of the settlement.

If you don't keep your website up to date, but I don't know if Richard or Ken you guys have any comment on sort of that idea of settling? And does that make you more prone to further lawsuits down the line?

We know this is Richard. I don't think it does, because it doesn't appear to me that any of the plaintiff's firms are paying attention to those kinds of questions. There are there are several million business-related websites located in the United States and the plaintiffs, although they're all fishing in the same ocean.

None of them are paying any attention to what the other plaintiffs are doing. So whether you settle or fight, I don't think has is going to have any impact on what another plaintiff or plaintiff's lawyer does because they don't need to pay attention to that.

In fact, they would be wasting their time if they spent a lot of time tracking other lawsuits because since there are so many law websites to sue. That's just not necessarily a good way to find the target website.

So I would say you settle or you defend based on your own assessment of the litigation risk and the costs and so forth. But you wouldn't do it because you're thinking about what some other plaintiff might do in the future.

Right. Appreciate that. Let me see, I'll jump down to our next question we have. Why isn't there a law or some protection for website owner manager where the owner manager is notified that their site isn't accessible and they're given a chance to remediate within a certain amount of time?

Yeah, Richard and I look like you're ready for that.

That's a great question. For the last decade or so, there have been efforts in Congress to pass exactly that kind of law. They always fail because they were vigorously opposed by the disabilities rights community and in particular by the legal.

The plaintiff's legal side of that. There is a bill that's been pending. It's a bipartisan bill to create a new chapter for the ADA that would govern websites, and it would include provisions like that. If it can get through Congress, whether it will be welcomed by the disability rights community or not is hard to say.

But in the past, but the disability rights community, and you can interpret that to mean mostly lawyers or mostly people with disabilities or whatever you want, but in general, the disability rights community has been very, very opposed to giving businesses advance notice and a chance to cure their websites.

And there's a practical reason for that, which is once a website is fixed, the lawyers don't make any money. So naturally...

To take a somewhat less cynical view of that, I'd say from working at the Justice Department that people with disabilities shouldn't have to wait in line in order to have them in order to have their rights defended. So I agree with what Richard says, but there is a there is another side to that.

Well, I would love for DOJ to enforce these laws more actively than it does and take it out of the hands of the private plaintiffs because DOJ enforces based on public policy and need. Private plaintiffs not so much.

Yeah, I think that we both feel a strong need for DOJ to come up with if in the absence of new legislation, at least clear regulations, but I think it's certainly.

I appreciate that.

Our next question is our company is thinking of offering an accessibility widget similar to what a third party overlay would offer. In addition to ensuring our website and mobile app is accessible on the code base level, would you suggest in voiding the widget entirely, is it ever a good thing to have an overlay?

As long as our accessibility strategy prioritizes that assistive technology can read our website? I know during my presentation I was talking about the overlay sort of as a Band-Aid for a bullet wound, really, and it's just more of a temporary fix, and sometimes it can actually put a target on your back.

But I'd be curious to see what you guys think about the overlay issue.

I guess I'll go first since I'm a consultant, and I work with overlays all the time. I have to deal with overlays all the time.

In general, they have such a bad reputation right now. They have such a target on their back. There is some indication that they're actually being used by plaintiffs to figure out which organizations they want to sue, as opposed to which ones to avoid.

That being said, though, I think that those of the folks that are in the disability community that are or a disability advocacy community that are so against overlays that may be a bit overstated because at the same time, technology has a way of evolving.

And I think the real problem with overlays is isn't so much the technology itself as much as the claims that are being made by the overlay companies. There is simply no way that they're going to be comply. You're going to get a WCAG 2.0 or 2.1 compliant website by using an overlay.

Yet, that's exactly what these companies say that they do, and that's where they get into trouble.

Right.

That's a problem for businesses that are facing litigation. I regularly have clients call me and say, well, I got sued or I got a demand letter, but it's OK.

I fixed it all. I've installed an overlay. So can you just tell him to go away? Of course, I have to tell them no, that it isn't going to make this lawsuit or demand go away. But that, of course, that reflects the relatively small number of people who get those.

But I think there's a much larger number of businesses that think they've solved their problem and are therefore not going to address it. And that's to me, that's the real harm. That it creates the impression that if businesses solved this problem, when we need to be telling businesses that they haven't solved their problem and that they're going to at least have to start on a real solution.

Right, and we have a follow up along a similar vein where it says if overlays are non-compliant, what are the best ways for small companies to ensure accessibility?

I'm with a nonprofit. I run our website and I'm the only one with any website management background but don't have any coding background. So yeah, what's the alternative, I guess, to the overlay if your a small business?

Oh, that's million dollar question.

You go first, Richard.

I don't think there is one. Small businesses that use template-based products like WordPress or Squarespace or whatever to create their websites are completely at the mercy of the template designers because they don't have the ability.

And I, my clients range from quite large, but clients who generate $20,000 a year in revenue from their website. $100,000 in revenue from their website. Fixing the website would cost more than their annual revenue. So right now, I think the development, for the development community could do that would probably be more beneficial than anything else to those with disabilities is start looking at ways to create tools that easily create accessible websites, preferably in a kind of a stupid-proof manner so that small businesses, which is most of them, at least have an opportunity to have an accessible website.

I'd agree with that. Also, to create a basic WordPress site doesn't require a tremendous amount of skill. Yet I think that the people that are developing them, they don't really focus on accessibility into basic things, and there has to be some awareness raised in the WordPress and Squarespace and Spotify.

Oh not Spotify, Squarespace development community and getting my technologies mixed up.

One thing I would add to that is when you're is following the money, when you say nonprofit, are you a nonprofit that serves people with disability that's federally funded or are state funded?

I think it elevates the expectations that you have an accessible website, even more so and many times partnering with universities. If you're a small nonprofit that, you know, receives these federal and state dollars, many times there's connections that can be made that could help you navigate that.

All right. Great. And our next question is, do you think the ADA will be updated to WCAG 2.1 or even 2.2? And I guess my short answer is I believe, I don't know if there's one that's officially, you know, the Department of Justice has gotten behind.

A lot of these lawsuits are mentioning the 2.0 standards and then the 2.1, but obviously we see it progressing with time due to higher and higher standards. But what do you guys think about which standard will sort of prevail as we're at the 2.0 2.1 stage and maybe 2.2?

Well, there's not an official standard. There is only standards that most people use and DOJ does lead the way. So I think the most recent DOJ settlement was 2.1 based, but right now there is no official standard.

And in fact, if you had a perfect WCAG 2.1. compliant website, you could still get sued under the ADA, and you couldn't prove that you were accessible just by proving that you were WCAG 2.1 compliant. So there's a big disconnect between the law and the technical standards that is waiting to be bridged.

Yeah. Putting aside the accessibility of the site, just in terms of the standards, 2.2 is out and 2.2 is well out, but there supporting techniques haven't been developed yet. So even if you tried to comply with 2.2.

Nobody really knows how to comply with 2.2. So 2.1 is totally flushed out and by the time. But then we've also got 3.0 so-called Silver out there. That is another set of WCAG standards and that they say, I think that the rumor is the WCAG Silver is going to actually be finalized before 2.2 is going to be finalized, but which is odd, but it follows the same no more the same taxonomy as the 2.X series. So, you know, if you're compliant with 2.1, you're obviously complying with 2.0, if you comply with 2.2, your compliant with 2.1.

But 3.0 is going to use an entirely different taxonomy, and the methodology that they use for figuring out compliance is also different in response to a lot of outcry from businesses that say we can't possibly make our entire website, we can't possibly guarantee that our entire website is WCAG 2.X compliant because we may have these rogue pages that aren't compliant. So that's just in terms of standards. I think that in reality, what's probably going to happen is Justice is going to use 2.1. 2.1 A and AA is my gut reaction, is my gut feeling is, it's going to be what ultimately they're going to use as a standard.

Yeah, the last regulations that failed were 2.0 based, really? I think so.

Yeah.

Right. And now another question we have is this is a little more broad. What is the job description of an ADA Coordinator look like? How much of it is focused on tech digital web accessibility versus other aspects like physical accessibility?

Well, usually I would say I'd like to say one thing about that. Usually they hire... Cities, governments usually hire the nice person to be the ADA Coordinator until they get in a position where they understand that that nice person who has no support might need to be somebody else.

So that's usually where we have these great project civic access documents and they come in that allow a more of a formal process. And it really, it's so different from county to county what the expectations are of an ADA Coordinator.

And it really depends on how it's set up. Is there is are there any funding? How much? How many staff do we need? Because if you think that one person can know all of the building codes, know everything I need to know about technology, know it all of the H.R. components and all that, it's just too much. It's not. That's not one person. So it needs to be a really an office that has technical support throughout. So I think I would love to talk to the DOJ about what the what the role of the ADA coordinator specifically is because it's so broad that it can't possibly be just one human being.

It's it just wouldn't happen. When I was ADA coordinator, I had people that that were experts and that were shared up to be experts so that we could collaboratively just kind of get through that. But I think it's something that is a really important job that should have nothing to do with politics, that should 100% be, you know, sured up to make sure that their successful

And I'll just say this. This is in the way of an anecdote, but I've recently been in a lawsuit with a municipality that has a budget in the high tens of millions of dollars, and their ADA Coordinator is the most junior person in the building inspection team because that's the person that they thought had time for it. And I mean, I think that's pretty typical of municipal and county governments.

It sounds like it takes a real team effort on that, not a one-stop shop.

And yes, our next question we've got are what are your thoughts with the Winn-Dixie verdict that websites are not necessary to be accessible? Will we see a drop in lawsuits out of Florida due to this verdict?

Well, last week, I believe it might have been late the week before, the 11th Circuit vacated all of the decisions in the Winn-Dixie case and found that they were moot. So right now, Winn-Dixie is non-existent. It remains to be seen if it will remain non-existent because there's already an effort to set that aside.

But for now, there's nothing no reason why the lawsuit rate of lawsuit filings in Florida should decrease. So.

I think that Jason Taylor did find that they took a dip, but now that was what Richard just reported.

I imagine that the plaintiff's bar down there is very happy. Yeah.

And Florida's always been a major player. Florida and California and New York.

Right. The Big three.

And there's no apparent reason why Florida should have so many lawsuits, except that they have a well-established ADA bar. So.

Exactly. Right. Our next question comes from Kyle Kaplan. He says, hi, I'm from a small online nonprofit company that's currently overhauling our accessibility strategy. There's obviously a lot to know. Where, but where would you say is the right place to start?

We've run an audit with an SEO specialist, but there must be more to the work we need to do as an online company, aside from what he recommends. So I guess again, a small online nonprofit, they're overhauling their accessibility strategy, I guess sort of a rather sort of bullet points.

Where does one start?

Oh, yeah. So if you're overhauling, when you have a very limited budget, I guess the important thing is that if you're really starting from scratch, then you really want to make sure that your developer understands accessibility.

So when you are setting up the templates that you're using WordPress, you, they really need to make sure that those templates are solid and that the developer that they're going to understands WCAG.

Right? Yeah, and I think we have another other similar question from Ellie, who is saying, yes, she's a smaller company without a large I.T. budget.

What are the best ways to achieve compliance? It seems like sort of, they've got a $10K manual audit is beyond our budget. So yeah, it sounds like it's the same kind of situation.

Yeah, unfortunately, that's typically the price range because it's such a labor intensive process to do a manual audit.

And that's the only way that you're going to be able to identify what the real barriers are. Just the way in which WCAG is written and the actual experience of people with disabilities just doesn't lend itself to automated solutions very easily.

But I actually have a question that I want to ask, particularly Ken.

OK.

Which is if it looks, it seems to me that the most serious accessibility problems are typically related to the complexity of the functions that are available on the website.

So, I mean, alt tags are pretty easy. It's the it's the code behind it where you're doing complicated things. And I wonder if it would be a good idea for any business or anybody who's going to use a website to kind of ask themselves, what functionality do we really need to accomplish our mission with this website?

And what are we doing? Because it was pretty, or it was fun, or the graphic designer loved it. You know, what can we can we take out the stuff that's most likely to cause accessibility problems and still accomplish our mission?

Is that even a good question to ask, Ken?

I think so, because it happens to me all the time. Sometimes we have developer designers who come back to our website and tell us, you know, your website looks awfully clunky or it looks old fashioned or, you know, you really could put in a new whiz bang widget in there to do this other feature. And of course, it's inaccessible. And that's the pressure that our clients are under, too. Yes, I agree with that. But maybe, I hate to say this, but maybe we're old fashioned, you know, like or maybe because we're lawyers, we don't mind a whole page full of text, but I get the feeling that people that are younger, that tend to have a shorter attention span want to have their information in bite-sized little chunks, and it very often messes up accessibility when they do that. Yeah. What I'd like to ask you, Richard, is what do you think about the idea of emphasizing the accessibility statement and then and an alternate form of communication? Because even though we haven't had this case yet, come up in the courts, I just got to believe that at some point some court is going to say you really don't have to make your website accessible because you provided a toll-free telephone number that was open 24 hours a day that provided all the same services that you could get over your website. We haven't seen that case yet, because, well, the facts were lousy in Domino's Pizza and they were lousy in Thurston versus Midvale. But won't we get that case eventually?

Well, the Winn-Dixie decision from the 11th Circuit was almost like that because the court didn't actually say the websites that websites in general don't have to be accessible. What it said was that the pharmacy website, the prescription reordering process could be just as easily done by phone, and therefore the website didn't have to be accessible for that purpose. But they drilled in very carefully on one feature of the website that happened to be the feature that was the subject of the lawsuit. I think the I mean, I think those kind of cases will come, but it's going to be hard for businesses to explain why calling is as good as using the

website. And that's going to be really hard for small businesses because if you're a small online business is available 24 hours a day, seven days a week, but they're not going to have a call center that's available 24 hours a day, seven days a week.

But I think we should be going there, and I also think that the courts need to focus, turn their focus away from accessibility in terms of being able to use every single feature of the website and instead defining accessibility in terms of what do you want to do?

What's this website for? If it's a shopping website, you should be able to find and buy stuff. But there may be some other things you can't do if they're not accessible, but in a sense, who cares? That the website's there for a purpose.

I think if the courts will focus on that, then it becomes possible to ask, OK, well, what's another way to accomplish the same thing? But as long as we're stuck on every single item on every single page of the website has to be completely accessible, regardless of whether anybody cares about it.

Then it's going to be hard for courts to say that you can do the same thing with a phone call.

Interesting.

We have our last two questions. I thought this one was very sort of interesting and practical.

If my company receives a demand letter, what should I do next? What are the next steps? So let's say we're on the receiving end.

So that's an easy. Call me. Or another lawyer who knows about the subject.

But if you get a demand letter, don't call. Call a lawyer first. You just have to.

Right. And Richard, is it your experience that people are sending out sort of demand letters, pre suit and trying to get a settlement?

Or do you think a lot of times lawsuits just filed? Is there a way to sort of tell how many firms are doing the pre suit demand letter versus just filing suit?

My experience has been the law firms that are serious about ADA litigation, file a lawsuit and they don't send a demand.

Interesting.

And the firms that are sending out demand letters will not file a lawsuit. They're just hoping to make a quick buck. Now they're I'm sure there's somebody out there who sent a demand letter before they filed a lawsuit.

But the groups that are sending out hundreds and hundreds of demand letters right now, are groups that have never filed a court case in federal court. So there's, you know, I don't think you can just assume that's going to be true of every letter you get.

Right.

That's why you should call a lawyer. To me there's a big distinction. The firms that really are a threat in a litigation sense, they just file a lawsuit. They don't...

And those are usually probably going after big targets, probably not just a small website.

Yeah, generally, once again, I'm a little cynical, but I think, you know, the firms that filed these lawsuits have an investment that they've made. They have an expectation of what they can get in a settlement, and they know that a website that doesn't generate significant revenue isn't going to be able to settle with them because it won't have the money it would. You know, those are websites that would be better off shutting down. And so but the plaintiff's bar isn't going to sue those people. Because why? Why would you invest the money in suing somebody that can't make a deal with you?

Follow the dollars.

They follow the dollar, which is rational. I mean, that's the ADA was set up to allow private enforcement on the theory that it would be profitable for the lawyers and that would therefore help create accessibility.

I don't think it's worked out exactly like it was intended to work out, but that at least is the theory. And if it's if it's a flawed theory in some sense, other than that, it annoys my client. The flaw is that it doesn't create a means for enforcing the ADA against very small businesses.

And it doesn't also provide a means for educating businesses about what they need to do. I mentioned the laws that never made it through Congress to give advance notice. The last one was called something like the ADA Education and Reform Act, and it specifically had zero budget for education.

I mean, it was actually in the statute that no money would be allocated for education. So it's like, OK, well, we're just going to make sure that nothing happens.

We have our final question.

One thing I would say, Oh, I'm sorry, if one thing I would say, I mean, you don't call a lawyer if you work for if you're an ADA Coordinator, that's not the option that's on the table. And so you would work your, you know, if you're an ADA Coordinator, I know there's some ADA Coordinators on here. What you would do is you would work with your general counsel.

You would review your policies, you gather your disability counsel group and you would start to strategize to create processes. Call a lawyer if you're out, you know, just you doing you or your person with a disability. And I know that disability rights of Florida here sometimes gets involved with some components of access.

But if you're an aid coordinator, you got it. You have to regroup and regather the team and look and see exactly, you know, what are the next steps? We would get calls on a regular basis from attorneys that says this program is not, you know, accessible.

What do we do until we gather, we review and we come up with a plan? That's all. Sorry.

Yeah, well, I think that's right. Every organization, big organizations, you're not going to call an outside lawyer, you're going to call your in-house counsel and you know, the little bit, just depends on the business or the organization.

Great. And here's another very practical question to wrap it up. It says I manage content on a website for a public library system. We continue to encounter one of the challenges Ken mentioned getting buy in to make a commitment to accessibility at levels of the organization, including leadership.

Are there any resources where we might find examples of practical strategies that might help us make that shift?

I want to say that the W3C has some resources along those lines. But yeah, that's that has there is there have been some, I guess, historical barriers that organizations have had in trying to push accessibility.

Trying to get buy-in from the leadership and a practical step-by-step approach to getting that buy-in as one of them. And I think that one of the things that's often raised at the same time is identifying the business case because organizations are very much interested in making organizations that their leadership are very much interested in making sure that it ultimately benefits them. So I see that there's something coming through in chat about this, OK?

And I know also there are a lot of questions we couldn't get to today. But if anyone wants to email Lori@Accessibility.com and then we can funnel the questions over to Ken, Beth, Richard and myself because I know we're running out of time, but I wanted to thank Richard, Ken, and Beth for participating in this AccessibilityPlus event. We really appreciate your time and insight and everyone for attending today, and we've got our next event, February 22nd.

Customer Service Training Improves the Customer Experience and Your Bottom-Line. That'll be our second AccessibilityPlus event. And you know, thank you all again for attending and to our expert panel, and we'll hope to see everyone at the next one.

Thanks so much.

Thanks very much for hosting us.

Thank you.

Thank you. Thanks.