- [Kari] Yeah, I'm just gonna leave it on the title. Hello, everyone. Thank you for joining us today. We will get started momentarily. Just gonna give a minute or so to let everyone finish joining into the room here. Again, just wanna say thanks to everyone for joining us today. We're just giving it a minute to let all the attendees get joined into the room, and then we will get started.

- Hey Kari, this is Ashley, we're not seeing the slides. Now we are.

- [Kari] All right. Thank you. And again, just wanna say good morning, good afternoon to everyone. Thank you guys for joining us today. My name is Kari Kernen, I am the Sales Development Director here at TPGi. Just wanna run through a few housekeeping items before we get started. This webinar is being recorded, and the recording will be sent out later after the event. We have transcription enabled, so if you need captions, you can turn that on. We have turned off the chat for this presentation, but we do have the question and answer box open. We will not be doing a live Q and A, but if you have questions that you need to get answered, feel free to type those in. And as we get going, we will respond to those questions later on this week and send out answers to you. And with that said, I want to welcome you guys to joining our webinar, ADA Legal Update: What your Restaurant Needs to Know about Digital Accessibility. Just gonna go through a brief legal disclaimer we have here. This presentation has been prepared by Seyfarth Shaw LLP for informational purposes only. The material discussed during this webinar should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The content is intended for general information purposes only, and you are urge to consult a lawyer concerning your own situation and any specific legal questions you may have. Now, with that, I'd like to introduce our speakers today. And I'm going to pass it off to Minh to introduce herself and get things going for you guys.

- Hi, everyone, my name is Minh Vu, and I'm a partner in the Washington DC office at Seyfarth Shaw. I'm also the head of the ADA Title III team here at Seyfarth nationally. And I'm so pleased today to have with me my colleague Ashley Jenkins, who is also in the DC office. Ashley and I work on many, many ADA Title III matters, including quite a few website accessibility- Web Digital Accessibility Matters. We also have here today, of course, Matt Ater. Matt is the vice President of Vispero. Vispero includes TPGi, which is obviously a consulting firm that we work with quite often. And Freedom Scientific, which is the maker of JAWS. Matt works to support customers across all brands within the Vispero family of products and services. And he brings over 28 years of experience in assistive technology and accessibility. I just wanna say that Matt is like my go-to for all manner of accessibility issues, especially kind of the weird ones. And obviously he has kind of a personal perspective on all of these matters. So it's great to be here and presenting with TPGi. I just wanna say that the slides, this is a combined effort, so you'll see kind of, you know, the Seyfarth slides for which the disclaimer would apply, are the ones that actually say, you know, have our little copyright at the bottom. So just a legal thing on that. Anyway, next slide, please. So today, I know those of you- This is a kind of restaurant focused presentation and, but you know what? Title III obviously applies to all sorts of other public accommodations as well. We're gonna focus on your business today. The first topic is why does digital accessibility matter? Matt's gonna cover that. Then we're gonna launch into the overview of ADA Title III requirements and national lawsuit numbers and hotspots. And Ashley is going to be talking about that. Then we're gonna talk about the Biden administration, what's going on with them, very active in this space. That's me. And then we will launch into digital access issues for restaurants. That's gonna be a combo of me and Matt. We're gonna talk to you, gonna kind of bounce back and forth to talk to you about those issues and what's going on, what's the latest in those areas. Okay, so next slide. We're gonna have Matt talk to you about why digital Accessibility matters.

- Thanks Minh, and very happy to be here with everybody today. So why does it matter? Well, as a person with a disability myself being blind, I'll tell you that there's lots of values here that we'll tend to talk through. First of all is that 1 billion people, 1 billion people today around the world, have some form of a disability, and it's about 15%. Then when you look at the United States, it's actually higher. It's like one in every four people have a disability. And I think part of that is that people in the United States are more likely to disclose a disability. And being more digitally focused, you'll see more impacts around accessibility. So it says that it, you know, one of the studies has shown that 50%, this is a big number, 50% of people with disabilities are online every day. That means they're using some type of digital properties. And this also means that they're online, they're spending money. And if we look at it, you know, 400 billion in purchasing power among these people with disabilities. And that's a big number. And so when you're thinking about, do I need to be doing this? There is the side of what's right for your customers. But we also know that when people have a positive experience in working with a restaurant, a store, or whatever business you're in, when they have a positive experience they're probably gonna become more loyal. And so whether it's the digital websites, the applications, the self-service devices, the people who greet them at restaurants, whatever it may be, as people engage around disabilities and are comfortable with people with disabilities, they're more likely to come back to your business and be loyal. I'm now gonna turn it over to Ashley for the next slide and come back in a little bit.

- Thank you, Matt. Pleasure to be here. Next slide, please. Okay, so the ADA prohibits discrimination against people with disabilities. And it covers various areas such as employment, state and local government, and public accommodations, which is what we will be discussing today. A public accommodation is a private business that falls into one of 12 categories that are discussed in the statute, and we will go over those in a minute. Under Title III of the ADA, public accommodations have certain affirmative obligations, beyond simply refraining from treating a person with a disability differently. It's kind of unique in that way, and that it requires affirmative actions to level the playing field to ensure that people with disabilities have the same access to your goods, services, and facilities. This slide shows the three affirmative obligations that facilities must take. The first one is that the facilities must be physically accessible to people with disabilities. And you must maintain those features. So what does that mean? Means, let's say you have accessible parking. You must keep that parking lot clear of debris and snow in the winter. So maintenance of facilities is very important. The second affirmative obligation is to make reasonable modifications to your normal policies, practices, and procedures where necessary to ensure that people with disabilities have access to your services and goods. The third obligation is to ensure effective communication with individuals with disabilities by providing them with auxiliary aids and services at no additional charge. This obligation comes into play when we discuss website accessibility later on, which is all about effective communication. As a reminder, private individuals can sue for injunctive relief, which means they can make the business do what they should already be doing, attorney's fees and costs. There are no damages or penalties allowed under a private enforcement action. The other enforcement mechanism is a DOJ action, which typically starts with an investigation. If you come to an agreement with the DOJ as to how to resolve that investigation, then the matter is resolved. If you do not, the DOJ can file a lawsuit. On this slide, you'll see that the DOJ can seek a very hefty penalty, in addition to injunctive relief and damages. Next slide, please. This slide lists the various categories of public accommodations that are enumerated in the statute, such as places of lodging and places serving food or drink. Basically, if you open your doors, either physically or virtually to the public and provide goods and services, you are a public accommodation. Next slide, please. So next we're gonna talk about some statistics and ADA trends, which we publish on our blog, adatitleiii.com on a regular basis. So right here you're gonna see the total number of ADA Title III lawsuits filed nationally over time, dating back to 2013 when Minh, my gracious leader, first started tracking these through the end of 2022. Note that we saw a steady increase over the years and a slight dip last year. Even with that dip, though, still over 300% more lawsuits last year than there were in 2013. Next slide. So this slide shows the top jurisdictions for Title III filings in 2022. As you see, New York is a hotbed, which is actually a change from years past where California was dominant. Minh will also discuss that a little bit later. Next slide. Okay, so this shows the top three states historically. Those have been New York, California, and Florida. As you see, California took a dip last year. As Minh will discuss in a little bit, it's likely due to a number of decisions that came out, which make it a less attractive jurisdiction for the plaintiff's bar. The bottom line on this slide is that California has become a little unfriendly for accessibility cases, and New York has become a little bit more friendly for the plaintiff's bar. Next slide, please. So this slide shows lawsuit filings last year by month. Typically we see a dip towards the end of the year due to the holidays, and for some reason we saw a dip in April as well. Next slide, please. So this slide is specific to website accessibility lawsuits over the last six years. No, this is just filed lawsuits in federal court, does not account for the hundreds of demand letters and state court filings that we see, which are next to impossible to track. So what do these numbers mean? Well, it's showing that it's far easier for a plaintiff to file a website accessibility case over a physical access case. Why is this? It's because a physical access case involves leaving your house, going to a site and then filing the lawsuit. But for website cases, someone can sit on their couch, visit a handful of websites, and then file the lawsuits in the next couple of hours. So what you see here is that website accessibility lawsuit filings are at the highest they've ever been since we have started tracking. Next slide, please. So this slide is comparative and it shows the number by website accessibility lawsuits filed by month last year, which follows the same trend as the general Title III filings. Next slide, please. And then this shows the number of website cases filed by state. And as you see, New York is surging. Typically these are filed in the Southern and Eastern districts of federal court, but we are seeing some in the Western district as well. Next slide, please. And this slide shows the trend of website accessibility lawsuits over the last few years in the top three states. So as you see, New York is just booming continuously. With Florida, California, and Pennsylvania remaining steady over the last handful of years. Next slide. Okay, I'm gonna hand it over to Minh now.

- Thanks, Ashley. So I think you... You can see that website, you know, website accessibility is, you know, a major area of litigation. We had over 3,000 lawsuits about websites last year. And overall, I think if you go back, I think we had like probably over 10,000 or 11,000 ADA Title III lawsuits generally filed in federal court. Remember, this is not a count for state law claims. And the one thing that for those of you who are in California should understand, is that the plaintiffs are going to state court. Because state- You know, if they file a state law claim, they can also assert claims for damages. And its statutory damages in California. So it's pretty much $4,000 for every encounter, which can really potentially add up. So that's something to keep in mind. Now, the agency that is responsible for enforcing Title III of the ADA is the Department of Justice. And the level of enforcement activity really, you know, from the DOJ depends on kind of who's in charge. In a democratic administration, you're gonna have much more aggressive enforcement of issues like digital accessibility and other things that are, I would say, kind of pushing the envelope, as opposed to like, well, not pushing the envelope. Frankly, during the Trump years, we saw virtually zero activity in the digital accessibility universe, and then all of a sudden there was a sudden ramp up as soon as the Biden folks showed up. Next slide, please. So obviously there are- There was increased enforcement in all areas under the Biden administration for Title III of the ADA. But we're just focused here on website accessibility and digital accessibility. First of all, there was a brief file by the Department of Justice in a case alleging that a self-service check-in kiosk at a laboratory, you know, like a... Well, I think it was West, yeah was the laboratory that the self-service check-in kiosk is was not accessible to the blind. And with the court... And we're gonna- You know what? I'm gonna save that for the kiosk discussion. But the DOJ jumped in and the DOJ basically jumped in and supported the plaintiff in the case, the person with the disability. That's a big deal to file a brief, because frankly they didn't do too many of those briefs in the Trump administration. All right. Then there were a number of consent decrees involving website accessibility. This was a, basically like an initiative on behalf of the Civil Rights Division. And they targeted COVID-19 vaccination web portals. And required all of the, basically the providers of these vaccinations to have websites that are accessible so people could schedule their vaccinations. RiteAid, Hy-Vee, Kroger, CVS. They were all kind of part of that wave of, you know, investigation and enforcement activity. Then we had a consent decree, the DOJ entered into a consent decree with UC Berkeley. Not UC Berkeley, sorry, just Berkeley. And the website, that was an extremely comprehensive consent or consent decree that, you know, covers every aspect of Berkeley's website and requiring it to be compliant with the web content accessibility guidelines version. I think 2.1 level AA. So that's WCAG 2.1 for short. I don't know why they call it that, but that's what it's called. So anyway, so lot of activity from the Biden administration, they're really focused on this issue. Next slide, please. Okay. So let's talk about digital access issues for restaurants. Next slide. What kinds of digital access issues do you- Oh, well, hmm. I think we're missing a slide. Can you go forward? Let's see. Hmm, keep going. Keep going. Okay. We'll have to go backwards a little bit. Sorry, folks. Okay, so what technology do you find in restaurants? What are you guys using? I think you all know what you're using, but I'm just gonna talk about it anyway. All right. Obviously every restaurant's got a website these days, and some of you even have a mobile app, right? Okay. So those things have to be usable by people with disabilities. Everybody also has a reservations, online reservations function. Typically I think that you're gonna be using a third party Rest, OpenTable, you know, all those players. And so the question is like, can, you know, people with disabilities use those third party reservations websites or not? And then there's the question of the PDF menu, right? In the old days we had just paper menus and people show up. Now, you know, you have the little QR codes and then it pulls up a PDF menu rather than having a hard copy menu. What are the issues that are presented in those? Well, I mean PDF menus, a lot of them are not readable by people, by screen readers that are used by people who are blind or have low vision. So that presents a challenge and, you know, ideally you would have accessible PDF menus, and there are ways to do that, but it's the thought. We get many claims about PDF menus as something you need to think about. Third party reservations websites. If that's the only way someone is able to make an online reservation for your website, then you should make sure to contract with a website reservation service that has an accessible website, right? You need to ask the question, is this accessible? Can a blind person use this? That's pretty important because that's the gateway to your restaurant, right? And essentially you can't- Well, one thing I wanna point out about the ADA, is that there's a provision that says you can't- That you are responsible for discrimination even if you basically have contracted for services that you are providing. So let's say, you know, a bank does online banking, but it basically contracts for somebody else to manage the online banking website. Well, guess what? That's still the service of a bank. It's the same thing with a restaurant or a hotel. If you have contracted that reservations function to somebody else, that's still your problem. Because, guess what? Making reservations is pretty key to the services that you offer, right? So it's still your problem and you're still gonna be liable under Title III the ADA for that if there is a problem. Obviously your website, your mobile app, those are your problems too. All right, let's go back up for a second. Go backwards, maybe like two slides. Yeah. Okay, here, let's stay here. So one kind of threshold question, and I don't wanna spend too much time on this, but you had- I'm sure as restaurants out there, probably all of you have had some experience with being sued for an ADA Title III violation. And most likely you've been sued by what we call a serial plaintiff, meaning a person who pretty much goes around and sues everybody, okay? Hundreds of cases, you know, who knows whether they ever really want to patronize your business or not. Chances are not, right? Well, believe it or not, there are a bunch of courts of appeals in the federal system who don't seem to care whether this person has any interest in patronizing your business or not. Those courts have said if that person is a proclaimed tester and they plan on coming back to test, that is enough to have standing to sue your business. I know this sounds crazy, but believe it or not, the First Circuit, the 11th Circuit, the Ninth Circuit, actually, why did I not put that on there? But the Ninth Circuit is on there too. And the Fourth Circuit have taken this position. Then you have other courts that have said, "No, there's no- Who cares if you can't? I mean, if you have no interest in patronizing the business, how have you been harmed?" Right? And harm is the key to having standing to sue. So those are the Fifth Circuits, 10th circuits and Second Circuits. And believe it or not, the Supreme Court is actually going to resolve this issue. This is pretty exciting. First time in 18 years that the Supreme Court has addressed an ADA Title III issue. And it's a big one. The question is, do you really have to be a patron or wanna be a patron in order to have standing to sue? And there's no briefing schedule yet. It's just been granted like a couple weeks ago, and we are super excited about it. Okay, next page. Okay, let's... Next slide, please. We're gonna talk about websites and mobile apps. We already talked about that slide. Okay, so very briefly, what... Basically what laws require, you know, restaurants to have accessible public facing technology? It would be Title III mainly of the ADA. There could be, of course there are also state non-discrimination laws as well, every state has one. And then maybe if you happen to be a state or local government entity that runs a restaurant, you would be covered under Title II of the ADA. Next slide. Okay, what is an accessible website? I probably should have had Matt do this one, but we're just gonna give you some, 'cause he's probably much more expert on this. But basically, you know, let's just talk about some of the key features. So if you're blind, you're gonna be using a screen reader to access a website like JAWS for example. In order to do that, you're gonna need- There are a variety of things that the website- Ways in which the website needs to be coded properly. But I'm just gonna highlight a couple of issues. Images, okay? The screen reader does not read an image unless there's alternative text behind that image, associated with that image. So that, you know, the screen reader can tell you like, what is the image about? Or, you know, what's in the image? That's really important, especially if like the image is something you have to act on, okay? Like, "Book now." If that's an image and it doesn't read, "Book now," we gotta say book now button or else, well, how are you gonna know that you need to click on that? Okay, properly labeled form fields. You're in a form field, but you have no idea what you're supposed to put in the field, okay? Needs to be labeled so that the screen reader reads it. Proper use of headings. Headings are kind of associated with certain content. So you know like where you are on the page. Like are you reading across the tabs? Kind of like that's all should be all one heading, one heading level, right? You know, when you go to a website, you visually organize the information with sight, but since you know blind people are not gonna be able to do that, you have to have headings that tell you, okay, we're on heading one, you know, here are all the things on this level. Okay, keyboard only access. People who are blind can't use the mouse because they don't know where they're pointing. So it's important to be able to move around the page using only a keyboard and be able to activate important, you know, the links, you know, and other things like that using the keyboard. So keyboard only access is essential. Audio descriptions for videos. You're watching a video, but you're blind, you have no idea what is going on on the screen, you can hear it, you can't see it. So for your videos you need a separate track, okay? That's gonna tell you, you know, you know, someone's flying over a city and bombing it. You know? The plane is flying over. I mean, otherwise you'd have no idea like what really is going on on screen. So audio descriptions for videos. If you're low vision, color contrast is really important. This is like my pet peeve, even though I'm- I mean, you know, as we age, right? Our vision gets not great, it gets degenerate. And color contrast is really important as well as the size of the text and being able to resize the text. If you're deaf or hard of hearing, the most important issue for you is gonna be closed captioning on videos. Because if there isn't closed captioning, you're not gonna be able to know what's going on. Folks with mobility issues also may need keyboard only access because they might have trouble using a mouse. Also, if, you know, if you're slower in moving your fingers, being able to react, then the ability to slow down or turn off time sensitive, like timed activities is very important. Folks with epilepsy obviously do not wanna be looking at content that's flashing that could trigger, you know, an episode. And then of course, they're the people who are colorblind. Those folks cannot use color as, I mean, if you're using color as the only method of conveying information, then that's wrong, that's not gonna work for them. Like for example, all the errors in your form are shown in red, and that's the only way you know that there's a problem. That's a problem for someone who's colorblind. Next slide, please. Okay. So very briefly you're asking, "Well, okay, I wanna make my website accessible. So what standard should I use?" Pretty much the set of guidelines that everyone is using would be the Web Content Accessibility Guidelines, version either 2.1 or 2.0, level AA. 2.1 is the newest, but really hasn't been adopted in any regulation. 2.0 has been adopted in a number of regulations, just not those in ADA Title III. So WCAG 2.0 AA is for example, in the regulations that apply to airport kiosks, for example, or all federal government websites. That's another one. But of course, the Justice Department has failed miserably to issue any regulations incorporating WCAG into the ADA Title III regulations that would apply to a restaurant or all other public accommodations. So what does that mean for you? Well, here's the thing. The DOJ doesn't care that has not adopted WCAG, okay? In the regulations. It basically still expects that your public accommodations website and app is going to be accessible to people with disabilities. And it believes that WCAG is, well, the defacto standard. So if you're gonna tell somebody to make your website accessible, you should use WCAG 2.1 AA. That's pretty much what we recommend next. Next slide. Okay. Like I said, the DOJ has failed miserably to issue regulations. I am not even gonna go through these slides because we don't have a ton of time. Let's just say that the Biden administration is kind of trying to refocus on this, but they're running out of time. I see no prospect for regulations on ADA Title III webs- You know, covered websites coming out during this administration, honestly. And it's been going on- This thing initially started in 2010 where they said they would do it. Then in 2017, the Trump administration said, "Eh, not doing it." But, you know, the Obama people sat on it for a really long time too and didn't do squat about it. So this is not just on the Trump administration. And now they're kind of trying, but they're not really. There is a very- There is a guidance that the DOJ issued in March, 2022. It really doesn't tell us anything that we don't already know. I guess the one thing I will say is that the DOJ has said that, look, I mean, you might be able to somehow provide equal access by not having an accessible website, but that seems kind of to be a very narrow window of possibility. Like, in other words, what really are you gonna do to provide access? Telephone access 24/7? I'm not sure that that... We'll talk about that. All right, next. Next slide, please. Okay, next slide. Okay, so that segues into kind of my overview of what the state of the law is. We don't have a lot of time, so I'm gonna give you the high-level situation. As a restaurant, this is not gonna be particularly relevant to you all, but the federal courts disagree on whether a web-only business is even covered under Title III of the ADA. There is a... Basically I would say a conflict in the circuits. The Ninth Circuit basically says, online only businesses are not covered by Title III of the ADA. But... Oh no, just period, right? Okay. And then, so if you are a business with a physical location and you offer a website, and there's some nexus between the website and the physical location, then the website is covered, because it's really an offering of a physical place. That's where like the Ninth Circuit is at, the 11th Circuit, and even the the California Court of Appeals too. But you got the first circuit that doesn't agree with that. And the New York, which is the other hotbed, the Second Circuit hasn't decided this issue. But almost all of the New York federal district judges agree that online-only businesses are covered. Okay. Next is another principle. If you have settled your case with one plaintiff promising to make your website accessible, is that a bar to like somebody else suing you? And the answer is no, it's not. Okay? Now, maybe if you're done making your website fully accessible, it might be... Well, then you'd have other arguments like you've now mooted the second case that segues to the third bullet here. But just because you've entered into a settlement with one plaintiff does not mean that somehow like the next plaintiff is barred from suing you, all right? That was the Dunkin' Donuts case in the 11th Circuit. All right, next bullet. What if you're in the process of making your website accessible? Does that mood out the case? Probably not. Very likely not. Unless truly you're done and your website is accessible now, right? And you can say this controversy is moot because now my website is accessible. Okay. Oh, let me go back to the second point about the prior settlement. Recently, if you enter into a consent decree, or consent order in which you promise to make your website accessible, that might prevent future litigants from being able to sue you. Okay? Because that's a little different. A consent decree is when you are under a court order, okay? To fix your website and make it accessible. And we've at least seen one case very recently that we blogged about on our blog post where the court said, "Well, I mean, there's already a consent order in place making this defendant make its website accessible and we are not gonna allow this other plaintiff, the second plaintiff, to disrupt that consent decree under the ancient doctrine of the All Writs Act." I know you guys are so interested in that. Long story short, they said, "Plaintiff number two, you're outta here." Okay? That was really nice. The only problem with the consent decree is you really actually have to mean it and you have to fix the website, 'cause otherwise you might be in contempt of court. So there's some upsides and downsides to that that you should talk to your lawyer about. Okay. Fourth bullet. Standing, if you think that, for example, the plaintiff could never use the services of your business in the cases we're thinking about, it's like the plaintiff sued about a credit union website, but the thing is, by law they could never be a customer of this credit union. So then in that case the court was like, "Well, you don't have standing to sue, you can't be injured by that problem." And then finally, the most interesting question, telephone access. Can that be a solution instead of having an accessible website? Well, for sure it's not gonna get rid of the lawsuit right up front, okay? Courts have never agreed to dismiss a case on a motion to dismiss because you have telephone access, even when the phone access was 24/7. Sadly I made that argument in a case for a client of mine that had amazing 24/7 service and the court was like, "Well, I think we're gonna want some discovery on that. We're not ruling on it now." Okay? So, you know, and then I'm gonna go to the next- Why don't you go to the next slide, 'cause I'm gonna talk about courts that have rejected phone service, okay? As an alternative access measure. In the Domino's case, I think some of you may have heard about this. Okay, this case was a case that honestly could have been settled for $10,000, but it went on instead for over, oh my goodness. Let's see, 2016. Oh, it went on for six years, okay? Six years. And it went like all the way up to the Supreme Court. Supreme Court said, "We're not listening, we're not looking at it." And then it went back down. And I'm just gonna give you the bottom line. The allegation was that the Domino's website and mobile app were not accessible to people with disability- To people who were blind, okay? Not blind accessible. And after all these years, at the end of the day, on summary judgment, the court determined that the website was still not accessible to people with disabilities because- Or not fully, because they couldn't place a future order. So the case was gonna go to trial, okay? And then I guess they hadn't decided the mobile app issue. And then eventually the party settled the case in 2022. But I'm telling you this is after six years of litigation, I don't even wanna know how much money was spent on this. So, and then one of the arguments that the Ninth Circuit... So on its way to the Supreme Court, it went to the Ninth Circuit. And one of the arguments Domino's made was, "Hey, we have 24/7 phone service now. People can call and place an order. And the court said, "Yeah, but if people have to wait 45 minutes in order to place an order, which is not quite the same as the experience on a website." Therefore it was not... You know, actually, I'm sorry, that was not at the Ninth Circuit. That was back when it went back down to the district court. That was when the district court said, "It takes 45 minutes to place an order, that is not the same as the experience you get on a website or mobile app." And that's kind of the problem. And, you know, with like the alternatives. Next slide. This is the issue in Thurston versus Midvale as well. The plaintiff argued, "Listen, you people can call our restaurant and get all the information that's on the website from us on the phone." And the judge said, "Well, not really, because you're only talking to people when the restaurant is open." Whereas like you could be, I don't know, hanging out at two in the morning when you have insomnia, and look at the offerings of the restaurant. Can't do it if you're blind, therefore not equivalent. The reason I wanna highlight Thurston versus Midvale, which is a California case, is because that one actually... You know, that kind of went the distance and not too many cases do, right? That went to through summary judgment. The court basically said, "No, the website is not accessible." It ordered the restaurant to make the website comply with WCAG 2.0 and then it ordered... It rejected the phone argument. And then this thing went all the way up on to on appeal, to the Court of Appeals. And again, the Court of Appeals of California affirmed the ruling. So long story short, kind of these are examples of restaurants, you know, food establishments that did not have accessible websites. And, well, we know how that story ended. All right, next slide. Okay, I'm not gonna- I'm gonna skip over this one, 'cause I know we're short on time. All right. I think now it's time for Matt to come back and talk to us about some strategies on how to avoid and defend website and mobile app litigation.

- Thanks, Minh. All right, so the first one, I think Minh talked a little bit about this around purchasing products or services. And she gave the example of a reservation system. But, you know, a lot of times companies hire other smaller- If you're a small business, you may hire a third party. And they may use a tool to build your website or your mobile app. And you need to make sure that anything that you put into your requirements for that third party to develop this, is building stuff from an accessible point of view. And that includes the third party products and services you may buy. This is a really easy thing to do that a lot of people miss. And they make the assumption because you write it into the RFP that they can verify it. So one of the things you need to do is ask for verification and even references of where accessibility has been performed. And I'll move to the next slide. And this is kind of connected to that, which is hire a third party to do your assessments. If you don't have a team that's doing accessibility, which a lot of small businesses can't do that, hire a third party to check and validate that something's been done accessibly, even if it's not you building it, if it's your own team building it and they have their own tools and experiences, which we'll talk about in a minute, then they may, you know, be able to do it on their own. But you can't make the assumption that everybody understands accessibility. It's not that it's complicated, but it has to be studied and developed and planned in your development processes. And I think that that applies also to the POS applications that you may build and some software and hardware, which we'll talk about around kiosk in a minute. The next slide is around monitoring your website and mobile apps. You know, use some tools to monitor and make sure that your apps are being built and don't regress. Let's say you get to an accessible state of view, you can't assume that down the road as you change your website, that something goes wrong and you break it. And I've seen a website that was a travel website that was perfectly fine. There were about three issues per page on average, and just one day it spiked to like 50 errors per page. And it's because they rolled out a new website, and somebody forgot to check for accessibility. Next slide is around training. And this is something I mentioned again before. If you have a team who's doing your work, they need to get training. And there's multiple ways of doing training. There's e-learning content, you know, that we have, there's webinars that you can attend, such as this one, but probably more technical. There's tools that can help train you, in-person training. Empathy training is also useful. Training on assistive devices so that you understand what types of things people are doing. Are they using touchscreens, are they using screen readers? Are they using pointing devices to access your content? Having an understanding about a person with a disability is a big step in this process. Next slide is getting customer feedback. So, you know, a lot of folks may have a feedback form on your page. You probably, and we'll talk about an accessibility statement in a minute, but you probably want a separate link to a form for providing accessibility feedback. And additionally, have people with disabilities provide you feedback. You can hire people with disabilities to test and validate their site. Maybe they're not gonna check for a WCAG violation, W-C-A-G violation, but what they're gonna do is tell you, is it usable? Can they do it? Can they do the common functions of your site? Is that placing an order, making a reservation, ordering something to be shipped to me? Whatever it may be. If you're using one of those third party processes, you want somebody with a disability to verify that they can do that kind of stuff. And plenty of people with disabilities will raise their hand and say, "I would love to be able to help you with that." Some more proactive strategies on the next slide, which is, you know, require the WCAG 2.0 or 2.1 or later. 2.2 is almost- I don't remember if it came out this month or if it's out in the next month. So be watching for that, there's some changes there. Create an accessibility statement, people look for this on your site. Have it clear and easy to find. Make sure your third party content is accessible. We talked about this a few minutes ago. And as Minh mentioned, there's always the 24/7 telephone line, but don't make it so we have to wait 45 minutes for any support. And now I want to jump into some kiosk stuff, and I'm gonna turn it back over to Minh.

- Thanks, Matt. Okay, I'm gonna kind of set the table with the legal landscape first, and then Matt's gonna talk about some practical considerations. So self-service kiosks are all over- They're popping up all over the place, right? You know, that you can use them to order food, to rent DVDs. Sometimes there are people who also are working nearby, sometimes not. You know, they're kiosks for, you know, vending food for dispensing your drinks. You know, they're just all over the... Self-service universe is just kind of, you know, expanding very rapidly. And unfortunately most of the time these kiosks are, we're just gonna call 'em kiosks, are not blind accessible. In other words, there's stuff going on being communicated through the screen and the blind person doesn't know what's on the screen. So that's a problem. And the Justice Department jumped in, you know, into the fray about a self-service check-in kiosk at a diagnostic lab back in 2022. And basically the kiosk was not usable by someone who's blind, but it could be used to summon an employee to come provide assistance. The problem is that the summoning process, like this three finger swipe that they said they had, resulted in this person being put all the way at the back of the line with the people who did not have an appointment. Even if they had an appointment. Obviously, not cool. And the DOJ said that is not providing an equivalent experience in this statement of interest. Okay? Ultimately, the lawsuit is still going on now, it's class action. But you can see that, you know, that has created a big problem. Now, we have another... On the other hand, there are a number of cases you know, involving inaccessible kiosks and employee assistance, okay? And the courts kind of come out, you know, differently. In other words, generally speaking, and I'm gonna make this short, if the employee assistance is prompt and effective and the information involved is not private, so no health stuff here, okay? Then it's okay. You can comply with the law by providing employee assistance. If the employee assistance is bad, it's slow, it's bad, it's inefficient, whatever, then it is not compliant with the law. But what I tell- I mean, what I tell clients is this. Are you really going to rely on your employees, most of whom are hourly and probably turnover all the time to know how to properly provide assistance to customers at these kiosks? Are they even gonna notice these people who are trying to use the kiosk? Chances are it's going to not work the way it's supposed to. And then you're gonna have a lawsuit on your hands. And the worst part is you're gonna have this lawsuit and no one is going to remember this encounter about what- And whether or not the assistance was provided in a prompt and effective way, right? Like, really? Your employees are really gonna remember what happened a year ago at that kiosk when they see like hundreds and hundreds of customers a day? I don't think so. So then we're gonna lose that lawsuit because, well, the plaintiff is gonna say, "It took me 15 minutes to get somebody to help me," and you will have no evidence whatsoever. So it's really better just to get an accessible kiosk in place. And now I'm gonna turn it over to Matt to talk about practical implications.

- So when we think about self-service devices, and I'm gonna talk about them a little broader than just a physical kiosk, because there's a lot of things as Minh mentioned out there, and some of them may even be payment systems where I have to go up and swipe a card. And the example she gave just a minute ago, if I have to enter a pin to be able to make that process because I'm using an ATM or maybe my credit card requires that, I can't give that information over to somebody else. I could also be doing a tip, as an example, on a food order. And if I can't verify that I did the tip, you know, what's to say that the server doesn't choose their own tip? And these are the kind of barriers that, you know, as a blind person, I would be highly concerned about when I'm using some of these devices. As a person who's blind, I really appreciate when a cell service device is accessible. And I'll use the example, if I'm walking into a restaurant and I was wanting to place an order for a sandwich, if I walked up to the counter, the only sandwich I'm gonna be able to order is the one that they, you know, want to read off the menu to me. They don't wanna read the entire menu. There could be 46 sandwiches to choose from in that place of business. And that's gonna take a lot of time. I can navigate through very quickly through an accessible kiosk to be able to select it. And I do that because there's text-to-speech. We check for the hardware accessibility, there's a place for a headphone to be plugged and that initiates the speech. Some people find it interesting that we still use headphones to access things today and not Bluetooth. We're using the wired headphones. And a lot of it comes down to, if I wanna use a- Excuse me, an ATM, I need a headphone. And if you walk around in an ATM today as maybe fewer and fewer of us are doing today, there's a headphone jack on every ATM which was something that was determined back, I think it was in the nineties. And Minh can of course confirm that later. But as an example, I'm able to do all of those things because I can plug in my headphones, it talks, I can use the touch screen. If that's been turned on for accessibility touches, I can use a keypad, and choosing the right keypad does matter based on the workflow. So we don't talk much about that on this screen, but there's some nice blogs on tpgi.com that will walk through selecting the right input device. An input being touchscreen, it could be a keypad, it could be a telephone-style keypad in a... It could be a full-size keyboard. Because maybe you have to enter in a lot of data. You know, if you're doing a check-in process in a healthcare space. Unlikely that in a restaurant we would go full-size keyboard, though. And within the company, you know, we can help a company figure out what those are. We don't supply 'em, but we actually can provide some real guidance on what's the right use cases. And so the design review is an example of something to be done. You know, what are the important workflows? What does a person need to be able to do to be able to use this device? A hardware review looks for all the standards that are in the ADA because there's screen height, you need reach mode to be able to bring the screen more into view for somebody who's in a wheelchair. You need the ability for it not to be blocked if I'm in a wheelchair, or to be impacted by me using my cane. And those are interesting things because you don't- You know, you assume that it's just a kiosk being used for food ordering, and you don't think about all these other things. So these are key components to it. Also, where's the placement of the keypad? Is that in reach of somebody in a wheelchair? Can a person who's blind find that keypad? Is it angled at the right angle so that if I'm standing up I can push down, and my hands aren't slipping off the keypad? Doing a kiosk software review. This is an area where a lot of gaps happen. People will put in technology to support the hardware accessibility. Meaning they'll put a keypad on there, but they don't always add text-to-speech. So adding the text-to-speech and then testing your workflow, so when you're plugging in the headphones and JAWS starts up on the kiosk, does it read things? Does it properly go through it? You know, if it's ordering a sandwich, can I do that? Can I do it in a timely manner? And when we look at some of the places we worked with today, you know, they want a blind person to be able to order food just as fast as their sighted peers. And so it's been a really great environment to work with some vendors out there who see that as a requirement. I mentioned the POS, or payment systems as well. These are sometimes handheld devices brought to the table for me to pay. Maybe I go to the counter and put in my credit card, can I use those devices? And there are accessible ones in the market today, but we don't always see accessibility being turned-on features in those devices. Having people with disabilities do your testing of those self-service kiosk as well. Next slide. Some of the things, other areas to be considered is drive-through. The impacts here are not gonna be most likely for people who are blind or visually impaired. You know, they're gonna be in a car with somebody else. There is some challenges if you're with somebody in a... And I'm talking today, we're not all driving around in self-driving cars today, but, you know, if you're driving with a car service, a cab or something like that, there could be some impacts. But, you know, there should be the biggest area right now is that a deaf person wouldn't be able to order out of a menu board. And so using mobile apps are good options for that. Service must be provided at the window. And finding effective communication while at the menu as well. Next slide. I'm gonna talk about some action items. Start working towards an ADA compliance of your digital properties. Scan your mobile apps and websites. Make sure they're compliant. Have usability testing done by people with disabilities. And, you know, this is where the number one thing is. Can a person with a disability access your goods and services? And then check your kiosk to make sure they're fully accessible for people with disabilities. And then finally, ask your vendors, make sure they can verify. Have them provide you background or backup to show that they've made their stuff accessible. Have them prove it to you. This is an important thing. Just because you bought it from them, you are the responsible party unless you put some requirements in your purchasing agreements. And now I'm gonna go ahead and turn it over to Kari for the final.

- [Kari] I just wanna thank everyone for joining us today, thank our other presenters as well. Just a few final notes. If you are looking to connect with Seyfarth Shaw, you can visit their blog at www.adatitleiii, and it's iii.com. Again, it's www.adatitleiii.com. And if you are looking to connect with TPGi, you can visit TPGi at the National Restaurant Show in Chicago that's coming up at Booth 6966. You can also reach us through our socials on Twitter, LinkedIn, or YouTube as well. Again, for those of you that submitted questions, we will look at those and get back to you later this week. Again, thanks again to our presenters today, and we hope the rest of you have a great rest of your day.