eSignatures and the Americans with Disabilities Act

The Americans with Disabilities Act is a landmark civil law that continues to have repercussions across the United States, nearly thirty years since its original form passing in 1990. A panel discussion at the annual ESRA conference eSignRecords2017 covered the current state of digital accessibility when it comes to serving people with disabilities under the ADA. In addition, getting businesses into compliance had significant coverage.

The participants were:

• Margo Tank, partner at DLA Piper
• Ryan Diehl, Sr. Director of Sales, Level Access

An introduction to digital accessibility

Diehl started by referencing Stevie Wonder presenting at the Grammy Awards and saying, “There will be a time when all things will be accessible to all people.”

“That’s what we’re talking about here,” Diehl said.

He continued: “When you think about digital systems, think about apps, websites, operating systems, Microsoft and Adobe products, and things like that, including hardware. The first question I usually get when I tell people what I do is, ‘How do disabled people use the web?’

“The answer is, software, which is referred to as ‘assistive technologies,’ such as screen readers or screen magnifiers or voice dictation, that allow people to interact with digital systems.

“The problem is that everything in this area is always changing. For example, smart watches and other wearable technologies, as well as the introduction of Alexa and Google Home help people interact with these things. Laws, and the lack of laws, can be confusing, and standards can be complex. It can be hard to know if something you’re developing meets certain requirements.

“One of the main problems is a lack of knowledge. We’re seeing recent college grads, for example, who don’t know what digital accessibility is.”

Diehl then outlined four reasons why people should care:

• Legal risk
• Market risk
• User benefits
• Brand risk: how the public perceives a brand (“The mantra that ‘there’s no such thing as bad press’ isn’t true when it comes to inaccessible content,” Diehl said.)

Why people should care: legal risk

Tank then went into the legal background of the subject. She said: “In recent years, one of the Department of Justice’s main focuses has been ensuring that businesses are meeting their obligation to provide accessible facilities. Under Title 3 of the ADA, public accommodations are prohibited from discriminating against people with disabilities. Compliance with Title 3 is enforced by the DoJ and has several options for relief, including monetary penalties, which aren’t that high, but they’re not what tends to worry people.

“Title 3 can also be enforced by private plaintiffs with lawsuits seeking injunctive relief. So even though the ADA doesn’t explicitly mention access to digital platforms, the DoJ has said it does. In 2010, the DoJ issued a notice that said the ADA applied to websites and other digital applications and sought feedback for appropriate standards. One of the options they came out with was a set of guidelines for website access.

“The DoJ then began pursuing enforcement actions. In 2014, there was an interesting one with H&R Block that was contested. They settled and the corrective action and injunctive relief that was entered was more about the brand image and the future cost the company might face if they didn’t come into compliance, even though technically the rules weren’t finalized.”

Tank noted that all the settlements that have been arrived at since 2010 have typically included the following:

• Conducting an annual accessibility testing with an independent consultant to audit the website
• Developing accessibility policies
• Providing employees with training
• Obtaining commitments from vendors
• Designating an employee as an accessibility coordinator
• Reporting to the DoJ in detail on compliance

“The cost associated with no complying is the cost to settle and then the cost of remaining in compliance, along with the not-intangible reputational risks,” Tank said. “In addition, one of the possibilities under the ADA is that private litigants can sue, which is an ongoing thing. In 2016, there were 244 lawsuits. So far in 2017, they’ve increased to 432, so it’s happening.

“Another step along the way is the demand letter. There’s a group of plaintiff attorneys who send letters to businesses to assess non-compliance, and businesses are agreeing and paying attorneys’ fees. The Trump administration has sent notice to every agency and said that if they want to issue new regulations, they have to be important to the administration’s policies. They had a list of what was okay and what wasn’t, and the ADA has been on the ‘no go’ list, but private litigation has still increased.

“The courts have been a bit schizophrenic, but most of them are following the DoJ. But some are starting to question what a public accommodation is and whether it’s due process to have a proposed rule from 2010 be a compliance standard.”

Why people should care: market risk

Diehl then took the reins of the discussion and noted: “Litigation has skyrocketed because private plaintiffs have decided that they will handle this on their own. The challenge absent regulations is that there’s no safe harbor, since there’s no definition of what accessible means from a legal perspective.

“There’s also an idea that there’s market risk from inaccessible content. There are regulations that say you have to provide accessibility in certain places. A good example is Section 508, which says that the government must buy the most accessible product to fit their needs. The FCC has its own accessibility guidelines for broadcast content, as do the DoT, airlines and health care.

“What we’re seeing in the private space is third party vendors having the inability to participate in procurement cycles. If you sell to industries that are high risk, such as retail, and you sell something on a retailer’s website that’s inaccessible, it will cause a problem. We’re also seeing a trend where they’re pushing out RFPs and saying, ‘You have to fix this.

“It’s an international thing, too. Regulations say that something must be accessible and the standards say how you should do it. There’s an international standard for websites. There are three levels of it – they build off each other. I haven’t seen anybody strive for the AAA level, since it requires a lot of resources.”

Why people should care: user benefits

Diehl noted: “27% of adults in the US have a disability that inhibits their daily function. One of the questions I get is, how is that number so high? It’s so high because it doesn’t just cover severe disabilities, such as deafness or blindness. It covers things like: limited sight, hard of hearing, cognitive disabilities like ADHD, and so forth.

“That percentage will only go up as the population gets older overall. I often ask audiences how many of them have increased text size on their laptop screen. That’s a good example of digital accessibility.

“When I got into this space, there was this idea that companies were losing revenue if they didn’t address accessibility, but there wasn’t a lot of data around that. A recent study showed that 71% of disabled people will click away from your website if it doesn’t accommodate them, which is pretty significant. We’re also seeing that 93% of them don’t call a number for help with a website if it’s provided.

“The problems encountered by disabled people were covered in the survey too. They included crowded pages, poor legibility, poor link information, distracting images, and so forth. Good accessibility tends to be good usability for everyone.”

Diehl then asked: “So how do you do this? There are two paths people tend to take. The cheaper way to do it is to incorporate accessibility practices early in the design process and do plenty of testing along the way.

“The other path, which is 95% of the people I deal with, covers things already out there. We’ve broken that down into three phases: discovery, retrofitting, and standardization. That means: test it, fix it, and make sure you don’t break it again.

“In the discovery phase, you want to see how compliant you are and where you’re starting from. One key thing is determining what is actually out there in the wild right now. Then prioritize what to fix first and figure out if there’s governance in place to guide the process.”

Tank noted that from a legal perspective, “We’re always asked, ‘What do we do today?’ We break it down into short-, medium-, and long-term plans. It’s crucial to make everyone up the chain aware of the situation and place an accessibility phone number on the website, even if they won’t call it, because the DoJ requires that. Then do an audit and start exploring the next phase.”

Diehl continued: “In the next step, it’s important to ensure you’re testing things properly and you understand full compliance. There are two types of testing: the technical side, which means, is the code written in compliance with the standards; and the usability side, which means, is it actually usable by disabled people.

“You can lean on software that can scan your site and look for problems. The challenge there is that machine learning can’t uncover everything, so you need a human to look at the code too. One example is alternate text (alt-text) for images – software can say if it’s there or not and not see if the text is right for the image.

“The last part of testing is functional. Employ people with disabilities to use your site and give you feedback. You could technically be compliant but not be 100% usable. At some point you hit a level of technical compliance where you have complete usability.

“We see three levels of accessibility with E-SIGN. There’s the ‘check the box if you agree’ type of stuff, which you can make accessible to people with disabilities and ensure that terms and conditions are readable, such as with headings and sub-headings.

“The next is software, such as uploading a document to be signed. Consider that in two parts: Is the document you’re uploading in an accessible format, such as a PDF or a Microsoft Office file, and is it usable? Can people do what they need to do?

“The last part is hardware accessibility, which is the most challenging. What type of OS are you running on it, for example? If it’s Windows, you’re good, because it has good options for that, but if it’s homegrown, you need to look further. And then what kind of content are you running on it? A good example of that is in the airline space: kiosks need to be accessible – third parties tend to build them and the airlines provide the software, so they need to work together.”

Diehl continued: “So, you know what’s wrong and you get good information together. Then you move into the fixing, or retrofitting phase. Fix the easy things first. You don’t want to get into a lawsuit over something simple, such as an alt-text problem. Then fix things that are harder within release cycles. Don’t stall new features – plan out your development so you can work the changes into your release cycle.

“Then consider provisioning development teams to address issues in the long term. Get good knowledge and be forward-thinking about site redesigns and so forth.

“Finally, you reach the ‘How do I not break it again?’ phase? The key is self-enablement. Refine processes, build out corporate governance, policies, and so forth, and do tooling you can do internally, and eventually you move into the easier method, where you’re considering compliance during the design phase.

“You should also make sure you schedule an annual audit and get good documentation out of that – don’t self-certify and instead hire an outside vendor to do it. Good defensibility involves good documentation that shows the strides you’ve made with accessibility.”

Diehl concluded: “Finally, questions to ask yourself: What’s your risk pool? (It’s larger if you sell to individuals.) Are you providing solutions to businesses in an at-risk industry, such as retail? (Retailers get sued all the time.) Do you have pending litigation? Do you have outside vendors? Has your organization been asked to provide proof of accessibility? And are you building new stuff today? If so, incorporate accessibility from the beginning.”

Q&A

One participant asked about the current situation with the Trump administration’s requirement about regulations, which as covered during the presentation. Diehl noted: “The DoJ didn’t throw rule-making away. It’s stuck on the inactive list and they’re waiting for the next administration to pick it up and run with it.”

Tank added: “People are wondering if it will be more onerous next time and Congress is talking about possibly providing a safe harbor time where businesses can come into compliance.”