Mitchell Hamline School of Law
Mitchell Hamline Open Access
'):19>#).41'78./5

Digital Accessibility and Disability
Accommodations in Online Dispute Resolution:
ODR for Everyone
David Larson
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Digital Accessibility and Disability Accommodations in Online Dispute
Resolution: ODR for Everyone
Abstract
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Keywords
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Digital
Accessibility
and
Disability
Accommodations
in
Online
Dispute
Resolution:
ODR
for
Everyone
DAVID
ALLEN
LARsON*
I.
INTRODUCTION
II.
PEOPLE
WITH
DISABILITIES
USE
TECHNOLOGY
AND
NEED
ACCESSIBILITY
III.
ACCESSIBILITY
IN
ODR
IV.
RELEVANT
LAW
A.
International
Efforts
B.
ADA
Title
III
C.
WCAG
D.
Section
508
of
the
Rehabilitation
Act
V.
BEST
PRACTICES
FOR
DIGITAL
ACCESSIBILITY
IN
ODR
*
David
Allen
Larson
is
a
Professor
of
Law
at
the
Mitchell
Hamline
School
of
Law
and
Senior
Fellow
at
the
Dispute
Resolution
Institute.
He
has
been
involved
with
online
dispute
resolution
(ODR)
since
1999,
and
he
is
the
System
Designer
creating
an
ODR
platform
for
the
New
York
State
Unified
Court
System.
David
has
more
than
60
legal
publications
and
has
made
more
than
160
professional
presentations
in
ten
different
countries.
He
is
Co-Chair
of
the
Section
of
Dispute
Resolution
Technology
Committee
and
was
a
member
of
the
ABA
E-Commerce
and
ADR
Task
Force.
He
worked
at
the
Equal
Employment
Opportunity
Commission
Office
of
General
Counsel,
Appellate
Division
in
Washington,
D.C.,
and
with
the
Office
of
Legal
Counsel
drafting
the
Regulations
and
Interpretive
Guidance
for
the
Americans
with
Disabilities
Act.
He
was
the
founder
and
Editor-in-Chief
of
the
"Journal
of
Alternative
Dispute
Resolution
in
Employment"
(CCH
Inc.),
an
arbitrator
for
the
Omaha
Tribe
and
numerous
other
civil
disputes,
and
a
Hearing
Examiner
for
the
Nebraska
Equal
Opportunity
Commission.
David
has
been
a
tenured
professor
at
four
different
universities
and
practiced
with
a
litigation
law
firm
in
Minneapolis.
His
articles
are
available
at
http://ssrn.com/author-709717.
431
OHIO
STATE
JOURNAL
ON
DISPUTE
RESOLUTION
I.
INTRODUCTION'
Court
systems
are
exploring
and
beginning
to
adopt
online
dispute
resolution
(ODR)
systems,
and
it is
critical
that
they
make
digital
accessibility
a
priority.
Even
though
we need
to
pay
close
attention
to
ODR
developments
in
court
systems,
we
cannot
overlook
the
fact
that
there
are
ODR
providers
in
the
private
sector
whose
systems
also
must
be
accessible
for
persons
with
disabilities.
Digital
accessibility
"is
the
ability
of
a
website,
mobile
application
or
electronic
document
to
be
easily
navigated
and
understood
by
a
wide
range
of
users,
including
those
users
who
have
visual,
auditory,
motor,
or
cognitive
disabilities."
2
Monitoring
digital
accessibility,
however,
involves
unique
challenges.
Unlike
the situation
when
someone
builds
or
remodels
a
physical
structure,
there
is
no
need
to
acquire
permits
or
licenses.
No
one
will
be
reviewing
your
website
to
ensure
compliance
with
a
set
of
standards.
Individuals
who
want
to
build
a
website
can
do
it
alone.
They
do
not
need
a
general
contractor
or
specialists
like
plumbers
and
electricians.
Additionally,
when
the
Americans
with
Disabilities
Act
of
1990
was
passed,
it
was
national
news
and
the
goal
of
making
physical
structures
accessible
was
a
conspicuous
concern.
The
emergence
of
the internet,
however,
was
not
accompanied
by
an
equivalent
concern
for
digital
accessibility.
It
obviously
requires
far
less
money
and
time
to
create
a
website,
mobile
application,
or
electronic
document
than
it
takes
to
build
a
physical
structure.
A
website
requires
only
one
person
to
build
it.
Although
access
to
the necessary
hardware
can
be
a
barrier,
the
cost
to
create
a
website
can
be
quite
minimal.
Everything
one
needs
may
be
available
without
charge
at
public
libraries
and
other
venues.
Consequently,
ensuring
digital
accessibility
for
every
website
requires
either
the
regulation
or
the
cooperation
of
millions
of
individuals.
The
task
may
appear
overwhelming,
but
a
conscious
effort
to
achieve
digital
accessibility
will
result
in
an
online
environment
that
is
inviting
and
more
understandable
for
all
users,
regardless
of
whether
they
have
a
disability.
Finally,
digital
accessibility
will
ensure
that
persons
with
disabilities
are
not
excluded
from
participating
in
the
online
world
that
becomes
more
essential
every
day.
I
This
article
is
a
revision
and
expansion
of
a
more
conversational
piece
co-authored
with
Lainey
Feingold,
a
nationally
recognized
disability
advocate.
Ms.
Feingold
can
be
reached
at
her website
https://www.1flegal.com/,
which
contains
substantial
disability
related
information.
2
Margaret
Rouse,
Digital
Accessibility,
TECH
TARGET:
WHATIS.COM,
https://whatis.techtarget.com/definition/digital-accessibility
(last
updated
May
2016).
3
Individuals
can
build
physical
structures
by
themselves.
For
example,
determined
individuals
can
and
have
built
homes
by
themselves.
That
is
the
rare
exception,
however.
And
those
structures
are
almost
always
modest.
I
am
not
aware
of
any
individuals
who
have
built
a 70-story
office
building
by
themselves.
432
[Vol.
34:3
2019]
DIGITAL
ACCESSIBILITY
Although
online
dispute
resolution
(ODR)
systems
have
been
available
for
at
least
twenty
years,
until
recently
they
functioned
primarily
as
alternative
dispute
resolution
(ADR)
processes
separate
and
distinct
from
court
systems.
4
But
a
rapidly
expanding
number
of
court
systems
have
adopted,
or
are
designing,
court-integrated
ODR
processes.
Because
the
number
of
ODR
systems
is
guaranteed
to
increase,
we
must
be
especially
careful
to
ensure
that
ODR
systems
are
accessible
to
persons
with
disabilities.
Individuals
who
use
computers
and
mobile
devices
but
cannot
see
a
screen,
hear
a
video,
hold
a
mouse,
or
have
other
disabilities
may
not
be
able
to
use
an
ODR
system
unless
we
pay
close
attention
to
digital
accessibility.
The
success
of
any
ODR
system
is
contingent
upon
accessibility.
Users
must
have
access
to
computers,
tablets,
or
smartphones,
for instance,
4
See
Ethan
Katsh,
ODR:
A
Look
at
History,
https://www.mediate.com/pdflkatsh.pdf
(last
visited
June
21,
2019).
I
currently
am
serving
as
the
System
Designer
for
the
New
York
State
Unified
Court
System
to
create
an
ODR
process
that
will
become
a
fully
integrated
component
of
that
court
system.
Other
court
systems
using
ODR
include:
(1)
British
Columbia
Civil
Resolution
Tribunal,
Province-wide;
(2)
Clark
County
Family
Court,
Las
Vegas,
NV
(3)
Franklin
County
Small
Claims,
Columbus,
Ohio;
(4)
Fulton
County
Small
Claims,
Atlanta,
GA;
(5)
New
York
State
Unified
Court
System
Consumer
Debt,
Statewide;
(6)
Ohio
Court
of
Claims,
Statewide;
(7)
Ottawa
County
Family
Court
Compliance,
Grand
Rapids,
Michigan;
(8)
Travis
County
Small
Claims,
Austin,
TX;
(9)
Utah
Courts
Small
Claims,
Statewide;
(10)
Tlaxcala
Supreme
Court,
Mexico;
(11)
Faulkner
and
Van
Buren
County
District
Courts,
Faulkner
and
Van
Buren
County,
AR;
(12)
Sherwood
District
Court,
Sherwood,
AR;
(13)
DeKalb
County
State
Court
-
Traffic
Division,
DeKalb
County,
GA;
(14)
Village
of
Ford
Heights,
Cook
County,
IL;
(15)
Jefferson
County
District
Court,
Louisville,
KY;
(16)
15th
District
Court,
Ann
Arbor,
MI;
(17)
74th
District
Court,
Bay
County,
MI;
(18)
10th
District
Court,
Calhoun
County,
MI;
(19)
65A
District
Court,
Clinton
County,
MI;
(20)
Clinton
Township,
MI,
41B
District
Court;
(21)
54B
District
Court,
East
Lansing,
MI;
(22)
21st
District
Court,
Garden
City,
MI;
(23)
20th
Circuit
Court,
Grand
Haven,
MI;
(24)
61st
District
Court,
Grand
Rapids,
MI;
(25)
31st
District
Court,
Hamtramck,
MI;
(26)
32A
District
Court,
Harper
Woods,
MI;
(27)
30th
District
Court,
Highland
Park,
MI;
(28)
55th
District
Court,
Ingham
County,
MI;
(29)
22nd
District
Court,
Inkster,
MI;
(30)
12th
District
Court,
Jackson
County,
MI;
(31)
4th
Circuit
Court,
Jackson,
MI;
(32)
62B
District
Court,
Kentwood,
MI;
(33)
City
of
Lansing
-
Income
Tax
Division,
Lansing,
MI;
(34)
54A
District
Court,
Lansing,
MI;
(35)
16th
District
Court,
Livonia,
MI;
(36)
1st
District
Court,
Monroe
County,
MI;
(37)
50th
District
Court,
Pontiac,
MI;
(38)
46th
District
Court,
Southfield,
MI;
(39)
23rd
District
Court,
Taylor,
MI;
(40)
14A
District
Court,
Washtenaw
County,
MI;
(41)
Washtenaw
County
Friend
of
the
Court,
Washtenaw
County,
MI;
(42)
29th
District
Court,
Wayne,
MI;
(43)
14B
District
Court,
Ypsilanti
Township,
MI;
(44)
Cleveland
Municipal
Court,
Cleveland,
OH;
(45)
Franklin
County
Municipal
Court,
Franklin
County,
OH;
and
(46)
Farmers
Branch
Municipal
Court,
Farmers
Branch,
TX.
Courts
Using
ODR,
THE
NAT'L
CTR.
FOR
TECH.
AND
DISPUTE
RESOLUTION,
http://odr.info/courts-using-odr/
(last
visited
June
21,
2019).
433
OHIO
STATE
JOURNAL
ON
DISPUTE
RESOLUTION
that
have
the
technological
capacity
to
interact
with
an
ODR
platform.
And
just
as
importantly,
the
ODR
platform
must
be
designed
so
individuals
are
not
excluded
simply
because
of
their
disability.
The
Americans
with
Disabilities
Act
of
1990
(ADA)
was
passed
because
"historically,
society
has
tended
to
isolate
and
segregate
individuals
with
disabilities,
and,
despite
some
improvements,
such
forms
of
discrimination
against
individuals
with
disabilities
continue
to
be
a
serious
and
pervasive
social
problem."
6
Enacted
almost
thirty
years
ago,
one
of
the
primary
purposes
of
the
ADA
was
to
make
certain
that
buildings
and
their
means
of
access
were
navigable
for
persons
with
disabilities.
That
focus
made
sense
in
1990
and
remains
an
important
concern
today.
Tremendous
amounts
of
time
and
energy
have
been
spent
providing
specific
instruction
concerning
disability
accessible
architectural
design.
The
2010
ADA
Standards
for
Accessible
Design
update
to
the
original
1990
standards,
for
instance,
includes
279
pages
of
very
specific
design
requirements
for
a
wide
variety
of
facilities
and
accessories
that
include
drinking
fountains,
carpet
pile
height,
locker
rooms,
clear
floor
or
ground
space,
knee
and
toe
clearance,
holding
cells,
parking
places,
saunas,
fishing
piers,
and
miniature
golf
courses.
7
This
detailed
concern
with
physical
accessibility
has
provided
opportunities
for
persons
with
disabilities
that
were
never
previously
available.
But
as
we
approach
the
third
decade
of
the
twenty-first
century,
we
must
make
certain
that
we
are
making
the
same
effort
to
ensure
digital
accessibility.
One
might
hope
that
concerns
about
equity
and
inclusion
alone
would
be
sufficient
motivation
to
guarantee
digital
accessibility.
That
hope
has
not
materialized,
and
many
websites
continue
to
be
inaccessible.
In
November
2017,
for
example,
the
Information
Technology
and
Innovation
Foundation
noted
that
of
the
468
most
popular
federal
websites,
only
sixty
percent
were
accessible
to
users
with
disabilities.
Problems
ranged
from
poor
contrast
to
a
lack
of
labels,
which
makes
it
difficult
for
persons
with
vision
impairments
who
rely
on
a
screen
reader
to navigate
those
websites.
9
Consequently,
there
is
a
rapidly
increasing
possibility
that
websites
not
digitally
accessible
will
be
sued.
A
July
2018
Seyfarth
Shaw
report
confirms
this
possibility
by
reference
to
ADA
Title
Ill1O
lawsuits:
6
Americans
with
Disabilities
Act,
42
U.S.C.
§
12101(a)(2)
(1990).
2010
ADA
STANDARDS
FOR
ACCESSIBLE
DESIGN,
65-67,
68,
81,
90-91,
97,
98,
102,
104-05,
107-11,
206
(Dept.
of
Justice
2010),
https://www.ada.gov/regs20O10/2010ADAStandards/2010ADAStandards.pdf.
8
Daniel
Castro
et
al.,
Benchmarking
U.S
Government
Websites,
INFO.
TECH.
AND
INNOVATION
FOUND.
4
(Nov.
2017),
http://www2.itif.org/2017-benchmarking-us-
government-websites.pdf.
9
Id.
10
42
U.S.C.
§
12182.
434
[Vol.
34:3
2019]
DIGITAL
ACCESSIBILITY
Plaintiffs
filed
more
ADA
Title
III
website
accessibility
lawsuits
in
federal
court
for
the
first
six
months
of
2018
than
in
all
of
2017.
There
were
at
least
1053
of
such
lawsuits
in
the
first
six
months
of
2018,
compared
to
814
in
all
of
2017.
If
the
filings
continue
at
this
rate,
there
could
be
more
than
2000
website
accessibility
lawsuits
filed
in
federal
court
for
2018.11
One
obvious
question
is,
given
the
fact
that
the
ADA
was
enacted
almost
thirty
years
ago,
why
has
it
taken
so
long
for
a
significant
number
of
lawsuits
to
be
brought
against
websites
that
are
not
accessible?
For
years,
many
potential
plaintiffs
were
waiting
for
the
U.S.
Department
of
Justice
to
issue
their
interpretation
of
the
ADA
about
[]
websites.
That
never
happened.
And
after
the
DOJ
once
again
extended
its
deadline
in
2015,
"it
felt
like
that
clarification
was
never
going
to
come,"
Helland
said.
A
wave
of
lawsuits
hit
the
federal
court
system
that
year
and
the
next.
Others
point
to
the
way
websites
have
developed.
In
many
cases,
as
websites
have
become
more
sophisticated,
access
to
them
has
actually
worsened.
1
2
In
this
continually
evolving
area
of
website
accessibility,
however,
it
is
difficult
to
define
liability
exposure
clearly.
On
June
20,
2018,
103
members
of
the
House
of
Representatives
wrote
a
letter
requesting
Attorney
General
Jeff
Sessions
to
"state
publicly
that
private
legal
action
under
the
ADA
with
respect
to
websites
is
unfair
and
violates
basic
due
process
principles
in
the
absence
of
clear
statutory
authority
and
issuance
by
the
department
of
a
final
I
Minh
N.
Vu
et
al.,
Website
Access
and
Other
ADA
Title
III
Lawsuits
Hit
Record
Numbers,
SEYFARTH
SHAw
(July
17,
2018),
https://www.adatitleiii.com/2018/07/website-access-and-other-ada-title-iii-lawsuits-hit-
record-numbers/.
12
Ted
Vezner,
Minnesota
Sees
First
Website
Access
Suit,
PIONEER
PRESS
(Oct.
8,
2008),
https://www.twincities.com/2018/10/07/minnesota-websites-sued-lawsuit-
disability-advocates/.
435
DIGITAL
ACCESSIBILITY
has
become
more
firmly
conservative.
As
a
result,
the
Court
may
not
require
businesses
to
comply
with
currently
available,
privately
promulgated
digital
accessibility
standards.
This
Article
will
revisit
the
question
of
what
digital
accessibility
standards
are
legally
required.
But
suffice
to
say
that
the
sands
are
continually
shifting.
I
prefer
the
carrot
to
the
stick,
however.
Although
the
threat
of
legal
liability
for
failing
to
satisfy
well-respected
privately
promulgated
standards
is
still
real,
making
a
website
digitally
accessible
will
make
it
easier
for
everyone
to
use
and
may
attract
new
users.
It
is
simply
a
good
business
decision.
While
accessibility
is
a
civil
and
human
right
of
persons
with
disabilities,
which
will
be
discussed
below,
accessible
ODR
platforms
and
content
do
not
provide
benefits
only
to
people
with
disabilities.
Accessibility
may
be
essential
for
some
individuals,
but
many
accessibility
design
features
will
be
helpful
and
useful
for
everyone.
Curb
ramps
at
roadway
intersections
help
parents
with
strollers
as
well
as
wheelchair
users.
Similarly,
captioned
video
content
benefits
anyone
in
a
noisy
environment
as
well
as
individuals
who
are
deaf
or have
limited
hearing.
A
well
designed,
easy
to
navigate
website
may
benefit
aging
baby
boomers
in
addition
to
people
with
cognitive
and
other
disabilities.
The
simple
fact
is
that
universally
designed
digital
content
can
benefit
everyone.
Digital
accessibility
is
achievable.
Regardless
of
whether
compliance
is
mandatory,
substantial
guidance
is
available.
Websites,
mobile
applications,
software
platforms,
and
other
technologies
will
be
accessible
when
developed
and
designed
to internationally
recognized
accessibility
standards.
A
host
of
best
practices
related
to business
processes
and
training
are
available
to
ensure
accessibility
for
ODR
systems.
The
purpose
of
this
Article
is
to
offer
ODR
system
designers,
practicing
neutrals
such
as
mediators
and
arbitrators,
information
technology
professionals,
private
and
public
decisionmakers,
and
policymakers
essential
information
and
tools
to build
and
maintain
systems
that
work
for
everyone.
It
is
hoped
that
readers
will
be
encouraged
to
share
ideas
for
making
ODR
a
model
of
accessibility
across
the
globe.
It
is
extremely
important
that
the
ODR
community
focus
on
digital
accessibility
at
this
moment,
because
ODR
systems
are
not
only
being
implemented
in
the
United
States;
they
are
being
adopted
around
the
world.
The
British
Columbia
Civil
Resolution
Tribunal
(CRT),
for
instance,
accepts
small
claims
cases
under
five
thousand
dollars
and
condominium
disputes.
2
0
The
CRT
offers
two
distinct
stages.
It
first
offers
a
"Solution
Explorer,"
which
20
CIVIL
RESOLUTION
TRIBUNAL,
https://civilresolutionbc.ca/
(last
visited
June
21,
2019).
437
OHIO
STATE
JOURNAL
ON DISPUTE
RESOLUTION
is
an
expert
system
that
educates
users
about
their
dispute
by
asking
progressively
more
detailed
and
focused
questions.21
Once
users
are
educated
about
the nature
of
their
dispute,
it
suggests
options
for
resolution.
22
By
August
2018,
there
had
been
43,719
explorations
by
users
attempting
to
resolve
their
dispute
online.
2 3
The
second
stage
offered
by
the
CRT
is
an
ODR
process
where
the
parties
engage
with
each
other
to
resolve
their
dispute.
By
August
2018,
the
CRT
had
accepted
7,142
disputes
and
resolved
4,574.24
With
this
level
of
user
engagement,
we
can
expect
that
ODR
increasingly
will
be
used
to
resolve
disputes
that
previously
were
addressed
in
the
traditional
civil
court
system.
II.
PEOPLE
WITH
DISABILITIES
USE
TECHNOLOGY
AND
NEED
ACCESSIBILITY
Any
discussion
of
accessibility
must
start
with
the
people
who
depend
on
it:
individuals
with
disabilities.
Technology
provides
unprecedented
potential
for
social
and
civic
participation
and
engagement
by
persons
with
disabilities.
Persons
with
disabilities
can
use
digital
tools,
but
only
when
websites,
mobile
applications,
conferencing
platforms,
and
other
technologies
are
designed
and
developed
with
accessibility
in
mind.
One
of
the
challenges
when
it
comes
to
accommodating
disabilities
are
the differences
among
disabilities.
People
with
disabilities
need
to
access
ODR
systems
in
a
variety
of
ways.
For
instance:
*
Not
everyone
can
hear.
Accessible
websites
and
mobile
apps
must
provide
captions
for
all
video
content.
*
Visually-impaired
individuals
may
be
able
to
hear
video
content,
but
they
may
not
be
able
to
find
the
video
player
on
the
page,
operate
the
controls,
or
adjust
the
volume.
Video
will
be
useless
for
visually-
impaired
individuals
unless
it
is
accessible.
2 5
If
equivalent
alternative
text
("alt
text")
is
not
provided
for
all
images,
then
any
information
communicated
through
images
will
be
inaccessible
for
persons
who
26
use
screen
readers.
Individuals
without
vision
impairments
who
turn
21
CIVIL
RESOLUTION
TRIBUNAL,
Getting
Started,
https://civilresolutionbc.ca/how-
the-crt-works/getting-started/
(last
visited
June
21,
2019).
22
id
23
CRT
Statistics
Snapshot,
August
2018,
CIVIL
RESOLUTION
TRIBUNAL
(Sept.
12,
2018),
https://civilresolutionbc.ca/crt-statistics-snapshot-august-2018/.
24
id.
25
Id
26
Id
438
[Vol.
34:3
2019]
DIGITAL
ACCESSIBILITY
off
video
and
images
because
they
have
low
or expensive
bandwidth
also
will
benefit
from
alt
text.27
Audio
description
is
another
valuable
accessibility
service
that
will
augment
the
audio
portion
of
a
presentation
with
essential
information
when
the
video
portion
is
not
available.
2 8
"During
existing
pauses
in
dialogue,
audio
description
provides
information
about
actions,
characters,
scene
changes,
and
on-
screen
text
that
are
important
and
are
not
described
or
spoken
in
the
main
sound
track."
29
*
Many
people
have
difficulty
using
a
mouse.
Instead
they
rely
on
a
standard
keyboards
or
on
a
specialized
keyboard
that
allows
characters
to
be
entered
with
one
hand
like
a
chord
on
a
piano.
Some
people
with
disabilities
cannot
use
their
hands
but
instead
rely
on
a
mouthstick
or
eye
tracking
to
input
data.
Voice
recognition
software
(like
Dragon
Dictate)
allows
for
voice
activated
input.
A
variety
of
assistive
technologies
are
available.
30
These
alternative
input
methods
may
not
work
unless
a site
(including
an
ODR
system)
is
designed
and
developed
with
accessibility standards
that,
among
other
things,
31
require
all
functionality
to
be
available
without
use
of
a
mouse.
*
People
with
visual
impairments-and
the
one
in
twelve
men
who
are
color
blind
3 2
-either
cannot
see
color
at
all
or
cannot
distinguish
between
certain
colors.
Developers
and
designers
should
not
to
use
color
as
the
only
means
of
conveying
information.
When
using
color
to
differentiate
elements,
provide
additional
identification
that
does
not
rely
solely
on
color
perception.
Use
an
asterisk
in
addition
to
color
to
indicate
required
form
fields,
for
example,
and
use
labels
to
distinguish
areas
on
graphs.
3 3
Light
gray
text
on
a
white
screen
may
27
Tim
Berners-Lee,
Accessibility,
WORLD
WIDE
WEB
CONSORTIUM
(W3C),
https://www.w3.org/standards/webdesign/accessibility
(last
visited
June
21,
2019).
28
Understanding
Success
Criterion
1.2.5:
Audio
Description
(Prerecorded),
WEB
ACCESSIBILITY
INITIATIVE,
https://www.w3.org/WAI/WCAG21/Understanding/audio-
descrition-prerecorded.html
(last
visited
June
11,
2019).
Id
30
See
Motor
Disabilities:
Assistive
Technologies,
WEBAIM,
https://webaim.org/articles/motor/assistive#intro
(last
updated
Oct.
12,
2012).
31
To experience
what
inaccessibility
feels
like,
readers
are
encouraged
to
put
away
a
mouse
for
fifteen
minutes
and
use
only
the
space
bar;
tab
and
enter
keys;
and
up,
down,
left,
and
right
arrows
to
navigate
a
webpage.
Readers
will
quickly
discover
which
site
owners
have
thought
about
accessibility.
32
Colour
Blindness,
COLOUR
BLIND
AWARENESS,
http://www.colourblindawareness.org/colour-blindness/
(last
visited
June
21,
2019).
3
Tips
for
Getting
Started
Designing
for
Web
Accessibility,
WEB
ACCESSIBILITY
INITIATIVE
(Jan.
9,
2019),
https://www.w3.org/WAI/tips/designing/.
439
OHIO
STATE
JOURNAL
ON
DISPUTE
RESOLUTION
be
difficult
to
read
for
many
viewers.
Accessibility
principles
embrace
34
color
contrast
requirements
that
enhance
readability
for
everyone.
*
Accessible
websites
are
well-advised
not
to
have
blinking
and
flashing
35
content,
simply
because
many
users
find
it
distracting
or
annoying.
However,
more
importantly,
a website
with
these
features
may
be
36
unusable
for
people
with
epilepsy
or
certain
cognitive
disabilities.
Around
the
world,
consistently
higher
numbers
of
people
will
access
ODR
systems
from
mobile
devices.
An
impressive
95%
of
Americans
now
own
mobile
phones,
77%
own
smartphones,
and
among
those
77%,
one-in-
five
accesses
the
internet
only
through
his
or
her
smartphone
without
traditional
home
broadband
service.
37
As
with
computers,
disabled
people
can
access
mobile
devices-even
without
a
keyboard-assuming
websites
and
applications
are
designed
to
mobile
accessibility
standards.
Both
Apple
and
Android
publish
accessibility
standards
so
developers
can
build
applications
that
work
for
everyone.
General
guidance
and
specific
information
about
building
accessible
websites
are
available
at
Accessibility
on
iOS3
and
Accessibility
on
Android.
39
III.
ACCESSIBILITY
IN
ODR
Regardless
of
whether
ODR
systems
are
developed
by
large
corporations,
small
businesses,
neutrals
who
work
independently,
or
courts,
all
systems
should
become
aware
of,
and
comply,
with
generally
accepted
digital
accessibility
standards.
Sir
Tim
Berners-Lee,
inventor
of
the
World
Wide
Web,
speaking
in
1997
at
the
launch
of
the
web
accessibility
initiative
put
it
succinctly
when
he
said
"[t]he
power
of
the
Web
is
in
its
universality.
34
See
Accessible
Technology:
Providing
Sufficient
Color
Contrast,
UNIV.
OF
WASH.,
https://www.washington.edu/accessibility/checklist/contrast/
(last
visited
June
21,
2019).
3
Id;
Accessible
Technology:
Avoiding
Flashing
or
Flickering
Content,
UNIV.
OF
WASH.,
https://www.washington.edu/accessibility/checklist/flashing-content/
(last
visited
June
21,
2019).
3 6
Accessible
Technology:
Avoiding
Flashing
or
Flickering
Content,
supra
note
35.
3
Internet
&
Technology:
Mobile
Fact
Sheet,
PEW
RESEARCH
CTR.
(Feb.
5,
2018),
http://www.pewintemet.org/fact-sheet/mobile/.
3
8
Accessibility
on
iOS,
APPLE
INC.,
https://developer.apple.com/accessibility/ios/
(last
visited
June
21,
2019).
3
9
Accessibility
Overview,
ANDROID,
https://developer.android.com/guide/topics/ui/accessibility/
(last
visited
June
21,
2019).
440
[Vol.
34:3
2019]
DIGITAL
ACCESSIBILITY
Access
by
everyone
regardless
of
disability
is
an
essential
aspect."
4
0
Every
element
of
ODR
information
and
communications
technology-systems,
content,
and
processes-must
be
accessible
for
ODR
to
be
truly
universal.
Although
many
of
us
may
think
about
alternative
dispute
resolution
(ADR)
and
ODR
as
distinct
processes,
ODR
is
merely
a
form
of
ADR.
In
fact,
the
label
"Online
Dispute
Resolution
(ODR)"
is
a
little
misleading.
When
most
practitioners
use
the
term
ODR,
they
typically
are
referring
to dispute
resolution
processes
that
not
only
rely
on
the
internet
but
also
may
be
supported
or
assisted
by
other
technologies.
This
so-called
ODR
process
may
be
supplemented
by
face-to-face
contacts.
A
more
accurate
term
may
be
41
"technology-assisted
dispute
resolution,"
but
the
term
ODR
is
typically
used.
"Technology"
includes everything
from
telephones
to
websites,
mobile
apps,
electronic
meeting
rooms,
fax
machines,
mobile
devices,
and
Near
Field
Communication.
Dispute
resolvers
have
been
using
some
of
these
technologies
"offline"
for
decades
and
they
are
an
essential
part
of
dispute
resolution
practices.
ODR
system
designers
may
encourage
parties
to
keep
every
communication
on
the
ODR
platform
for
reasons
such
as
confidentiality
and
accountability.
Dispute
resolution
professionals,
however,
may
prefer
to
use
online
tools
along
with
"offline"
technologies,
such
as
the
telephone
or
even
a
possible
in-person
meeting.
Although
a
dispute
resolution
process
may
combine
online
and
offline
communications
or
have
several
stages
that
progress
from
negotiation
to
mediation
to
arbitration,
there
nonetheless
are
ODR
systems
that
allow
parties
to
complete
the
negotiation
stage
entirely
online.
42
All
technologies
and
communication
options,
whether
offline
or
online,
must
be
accessible.
One
advantage
of
a
dispute
resolution
process
that
is
entirely
online
is
that
all
the
online
interactions
can
be
designed
and
monitored
for
accessibility.
One
of
the
goals
of
ODR
has
been
improving
access
to
justice.
I
am
the
System
Designer
currently
working
with
the
New
York
State
Unified
Court
System
to
create
an
ODR
process
that
will
be
fully
integrated
into
the
40
World
Wide
Web
Consortium
Launches
International
Program
Office
for
Web
Accessibility
Initiative,
WORLD
WIDE
WEB
CONSORTIUM
(Oct.
22,
1997),
https://www.w3.org/Press/IPO-announce.
41
Another
acronym
I
proposed
years
ago
is
TMDR
(Technology
Mediated
Dispute
Resolution).
See
David
Allen
Larson,
Technology
Mediated
Dispute
Resolution
(TMDR):
A
New
Paradigm
for
ADR,
21
OHIO
ST.
J.
ON
DisP.
RESOL.
629
(2006);
David
Allen
Larson,
Technology
Mediated
Dispute
Resolution
(TMDR):
Opportunities
and
Dangers,
38
U.
TOL.
L.
REv. 213
(2006).
42
See
MODRIA,
https://www.tylertech.com/products/modria
(last
visited
Nov.
6,
2018);
SMARTSETTLE,
https://smartsettle.com/
(last
visited
Nov.
6,
2018).
441
OHIO
STATE
JOURNAL
ON DISPUTE
RESOLUTION
official
court
system.
We
began
working
on
this
project
because
the
New
York
state
courts
recognized
that
the
default
judgment
rate
in
credit
card
debt
collection
cases
was
disturbingly
high.
The
New
Economy
Project
has
reported,
for
example,
that
the
defaultjudgment
rate
in
several
New
York
City
zip
codes
was
more
than
ninety
percent.
43
The
Office
of
Court
Administration
was
directed
to
explore
the
possibility
of
designing
an
ODR
system
that
would
increase
debtor
participation
rates
in
debt
collection
cases.
Several
reasons
contribute
to
the
low
debtor
participation
rate,
including
allegations
of
"sewer
service"
(false
claims
of
legal
service)
and
massive
"robo-signing"
of
fraudulent
documents
that
are
submitted
to
the
court.44
The
hop
was
that
an
official
online
court
process
would
address
and
improve
some
of
the
fraudulent
service
and
document
signing
concerns.
In
addition
to
these
benefits,
an
ODR
system
would
also
encourage
debtors
who
do
not
have
vacation
days
and
could
not
afford
to
attend
a
court
hearing,
or
who
were
intimidated
by
the
prospect
of
appearing
before
a
judge,
to
participate
in
the
debt
collection
process.45
Some
of
the
same
reasons
for
integrating
an
ODR process
into
the
New
York
Unified
State
Court
System
apply
when
we
consider
whether
an
ODR
process
can
improve
access
to
justice
for
persons
with
disabilities.
Persons
with
disabilities
may
have
the
same
lack
of
vacation
time,
financial
concerns,
transportation
challenges,
and
intimidation
challenges
facing
credit
card
debtors
and,
in
fact,
many
other
types
of
civil
justice
defendants.
Just
as
we
must
ensure
that
an
ODR
system
has
a
literacy
level
appropriate
for
the
vast
majority
of
the
population,
we
must
ensure
that
any
ODR
system
is
digitally
accessible
for
persons
with
disabilities.
There
are
distinct
aspects
of
an
ODR
system
that
require
attention
so
that
"everyone
regardless
of
disability"
will be
able
to
fully
participate.
*
Home
Page:
The
home
page
is
the
landing
page-the
user's
first
interaction
with
the
ODR
system.
It
must
be
understandable
and
engaging.
If
any
users
cannot
understand
the
first
steps
that
must
be
taken,
or
if
persons
with
disabilities
immediately
are
confronted
with
inaccessible
features,
then
users
quickly
may
abandon
the
process
and
never
return.
43
The
Debt
Collection
Racket
in
New
York,
NEW
ECONOMY
PROJECT
5
(June
2013),
https://www.neweconomynyc.org/wp-
content/uploads/2014/08/DebtCollectionRacketUpdated.pdf.
4
Id.
at
1.
45
See
David
Allen
Larson,
Designing
and
Implementing
a
State
Court
ODR
System:
From
Disappointment
to
Celebration,
2019
J.
DisP.
RESOL.
77
(2019),
available
at
http://ssrn.com/abstract-3399778.
442
[Vol.
34:3
20191
DIGITAL
ACCESSIBILITY
*
Dashboard:
The
dashboard
is
the
control
center
for
an
ODR
platform;
where
information
needed
to
understand
the platform
is
organized
and
presented.
Just
as
a
driver
cannot
safely
drive
a
car
without
understanding
its
dashboard,
an
ODR
participant
will
not
be
able
use
the
platform
without
understanding
its
dashboard.
An
inaccessible
dashboard
means
the
ODR
system
will
fail.
*
Participants:
Accessibility
is
too
often
thought
of
only
in
terms
of
the
end
user-in
our
case,
the
parties
to
a
dispute.
But
any
system
participant
may
need
accessibility.
Neutrals,
court
clerks,
attorneys,
or
systems
administrators
may
be
disabled.
Computer
users
with
disabilities
may
be
anywhere
(and
everywhere)
in
the
process.
*
Authentication:
Security
and
confidentiality
demand
that
each
person
on
the
ODR
platform
is
the
person
that
he
or
she
claims
to
be,
or
is
authorized
to
act
on
behalf
of.
Authentication
is
a
critical
issue
when
we
use
technology
to
resolve
disputes.
The
process
or
procedures
we
use
to
confirm
identity
must
be
accessible.
Alternative
authentication
processes
must
be
available.
An
ODR
system
cannot
rely
only
on
items
or
documents
that
persons
with
disabilities
may
not
possess,
such
as
a
driver's
license.
*
Conferencing
Platform:
Conferencing
accessibility
may
be
essential
to
an ODR
system.
Careful
attention
must
be
paid
to
ensure
that
everyone
has
an
equal
opportunity
to
participate
in
video
or
audio-
only
conferences.
Key
aspects
of
platform
accessibility
include:
O
Effective
communications
for
deaf
and
hard
of
hearing
participants,
including
captions
and/or
sign
language
interpreters.
Video
remote
interpreting,
if
used,
must
be
carefully
monitored
and
follow
best
practices.
46
O
Audio
description,
for
blind
participants,
to
describe
visual
elements
of
any
video
content
introduced
during
the
conference.
o
Accessibility
of
the
video
conferencing
platform
itself.
All
functionality
must
be accessible,
including
chat windows,
sign-in,
volume
control,
and
mutability.
443
46
See
Remote
Interpreting
Guide
for
Courts
and
Court
Staff,
NATIONAL
CENTER
FOR
STATE
COURTS
(June
2014),
http://www.courts.ca.gov/documents/COS-VRILAP-MDS-
080816-attachment-7.pdf.
DIGITAL
ACCESSIBILITY
Relay
Services
(TRS)-federally
established
communication
systems
that
allow
deaf
and
hard
of
hearing
people,
as
well
as
people
with
speech
disabilities
to
place,
receive,
and
participate
in
phone
calls.
As
the
US
Federal
Communications
Commission
states
on
its
website:
"If
you
hear,
'Hello.
This
is
the
relay
service
. .
.'
when
you
pick
up
the phone,
please
don't
hang
up!
You
are
about
to
talk,
through
a
TRS
provider,
to
a
person
who
is
deaf,
hard-of-hearing,
or
has
a
speech
disability."52
To
allow
deaf
and
hard
of
hearing
individuals
and
people
with
speech
disabilities
calling
via
TRS
to
have
full
and
equal
participation
in
telephone
discussions,
all
ODR
participants
must
be
mindful
of
the
time
lags
that
naturally
result
when
spoken
English
is
being
translated
into
ASL
or
transcribed
into
English,
and
vice
versa.
*
Architectural
Accessibility:
When
ODR
mediations,
arbitrations,
or
meetings
are
held
in
the
physical
environment,
that
environment
must
be
accessible
to
people
with
physical
disabilities.
This
not
only
means
that
the
meeting
room(s)
must
be
wheelchair
accessible,
for example,
but
the
restrooms
must
be
also.
If
the
meeting
host
(mediator,
lawyer,
etc.)
does
not
typically
operate
in
an
accessible
space,
policies.must
be
in
place
to
hold
the
meeting,
mediation,
or
arbitration
in
an
53
accessible
space.
The
physical
location,
the
documents,
and
the
technology
employed
at
that
location
must
all
be
accessible.
If
a
mediator,
arbitrator,
or
other
third-party
neutral
hands
out
a
paper
copy
of
a
confidentiality
statement,
for
example,
or
uses
technology
to
summarize
or
illustrate
progress
that
is
being
made
during
an
in-
person
meeting,
that
information
must
be
presented
in
an
accessible
manner.
Given
the
difficulty
one
often
encounters
when
trying
to
locate
and
reserve
a
meeting
place,
this
obviously
should
not
be
left
to
the
last
minute.
Arrangements
should
be
in
place
in
advance.
*
Sign
Language
Interpreters
and
Other
Communication
Services:
It
was
previously
explained
that
ODR
systems
often
rely
upon
both
online
and
offline
communications.
We
already
observed
that
it
is
crucial
for
digital
conferencing
platforms
to
be
accessible
for
participants
who
are
deaf
or
have
hearing
limitations.
When
meetings
are
held
in
a
physical
location
as
part
of
a
primarily ODR
process,
52
U.S.
F.C.C.,
Telecommunications
Relay
Service
-
TRS
(Sep.
8,
2017),
https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.
5
See
A
Planning
Guide
for
Making
Temporary
Events
Accessible
to
People
with
Disabilities,
ADA
NATIONAL
NETWORK
(2015),
https://adata.org/publication/temporary-
events-guide.
445
DIGITAL
ACCESSIBILITY
disabilities
in
official
interactions."
5
8
Finally,
Article
13
ensures
effective
access
to
justice
for
persons
with
disabilities.
59
Governing
bodies
around
the
world
increasingly
are
mandating
that
digital
properties
and
content
be
accessible.
The
Web
Accessibility
Initiative
of
the
World
Wide
Web
Consortium
(W3C)
maintains
a
list
of
international
accessibility
laws
and
policies.
60
B.
ADA
Title
III
In
addition
to
the
recent
ADA
Title
III
litigation
and
regulation
developments
discussed
earlier,
it
is
important
to
recognize
that
United
States
courts
have
determined
that
the
Americans
with
Disabilities
Act
(ADA)
applies
to
websites.
The
United
States
District
Court
for
the
Eastern
District
of
New
York,
for
example,
could
not
have
said
it
more
clearly
than
it
did
in
Andrews
v.
Blick
Art
Materials,
LLC
when
it
stated
that
"[i]t
is
unambiguous
that
under
Title
III
of
the
ADA,
dickblick.com
[the
retailer's
website]
is
a
place
of
public
accommodation."
6
1
Andrews
relies
in
part
on
National
Federation
of
the
Blind
v.
Scribd
Inc.,
which
held
that
Title
m
of
the
ADA
covers
the
website
of
a
company
without
any
physical
locations.
6 2
The
Andrews
opinion
reveals
that
there
is
a
disagreement
among
United
States
courts,
however,
as
to
whether
a website
must
be
affiliated
with
63
a
physical
location
to
be
covered
under
ADA
Title
III.
In
Magee
v.
Coca-
Cola
Refreshments
USA,
Inc.,
the
United
States
Court
of
Appeals
for
the
Fifth
Circuit
notes
that
the
First
Circuit
and
Seventh
Circuit
have
interpreted
the
words
'"ublic
accommodation"
in
ADA
Title
III
to
extend
beyond
physical
places.
In
contrast,
the
Third,
Sixth,
and
Ninth
Circuits
have
determined
that
65
a
physical
location
is
a
requirement
for
ADA
Title
III
coverage.
I
believe
that
the
better
view
is
that
ADA
Title
III
should
cover
all
websites,
whether
or
not
they
are
affiliated
with
a
physical
location.
As
Americans
continue
to
depend
more
frequently
on
websites
to
deliver
services
and
goods,
those
websites
increasingly
will
be
perceived
as
"places."
In
addition
to
our
common
understanding
of
what
constitutes
a
"place,"
we
5 8
1d
at Art.
21.
5
Id
at
Art.
13.
6
Web
Accessibility
Laws
&
Policies,
WORLD
WIDE
WEB
CONSORTIUM
(Mar.
21,
2018),
https://www.w3.org/WAI/policies/.
61
Andrews
v.
Blick
Art
Materials,
LLC,
268
F.
Supp.
3d
381,
393
(E.D.
N.Y.
2017).
62
Nat'1
Fed'n
of
the
Blind
v.
Scribd
Inc.,
97
F.
Supp.
3d
565
(D.
Vt. 2015).
63
Id.
at
388-394.
64
Magee
v.
Coca-Cola
Refreshments
USA,
Inc.,
833
F.3d
530,
534
n.23,
(5th
Cir.
2016).
65
Id
447
OHIO
STATE
JOURNAL
ON
DISPUTE
RESOLUTION
cannot
forget
that
the
ADA
is
a
remedial
statute
that
must
be
given
a
broad
interpretation.
6
6
The
Andrews
court
provided
additional
reasons
as
to why
a
physical
location
is
not
a
prerequisite.
The
court
observed
that
Title
III
is
called
"Public
Accommodations
and
Services
Operated
by
Private
Entities,"
not
"Places
of
Public
Accommodation
and
Services Operated
by
Private
Entities."
67
Additionally,
the
title
of
section
42
U.S.C.
§
12182,
which
prohibits
discrimination,
is
"Prohibition
of
Discrimination
by
Public
Accommodations,"
not
"Prohibition
of
Discrimination
by
or
in
Places
of
Public
Accommodation."
6 8
Furthermore,
the
categories
of
private
entities
covered
by
42
U.S.C.
§
12181(7)
are
listed
under
"Public
accommodation,"
not
"Places
of
public
accommodation."
6 9
On
the
one
hand,
when
ADA
Title
III
describes
the
public
accommodations
covered
by
the
law,
it
uses
a
variety
of
words,
including
"place,"
"office,"
and
"establishment."
7 0
On
the
other
hand,
when
describing
the
entities
that
sell
goods
and
provide
services
to
the
public,
the
statute
never
uses
the
word
"place,"
making
it
evident
that
it
covers
every
"sales
or
rental
establishment"
and
"service
establishment."
7
1
Although
the
statute
defines
"public
accommodation,"
it
never
defines
"place"
nor
"place
of
public
accommodation."
This
difference
indicates
that
the
word
"place"
was
not
intended
to
limit
the
statute's
reach,
but
"that
Congress
likely
used
the
word
'place'
because
there
was
no
other
less
cumbersome
way
to
describe
businesses
that
offer
those
particular
goods
or
services
to
the
public."
7 2
As
convincing
as
that
may
sound,
as
President
Donald
Trump
continues
to
appoint
new
federal
judges
who
are
more
conservative,
those
judges
may
adopt
a
narrow
version
of
the
ADA
Title
III
"public
accommodations"
definition
and
decide
that
a
website
must
be
affiliated
with
a
physical
location.
National
Federation
of
the
Blind
summarizes
the
argument
as
to
why
the
term
"public
accommodations"
must
require
a
physical
location:
[T]he
canons
of
noscitur
a
sociis
and ejusdem
generis
compel
the
Court
to conclude
that
Noel
v.
New
York
City
Taxi
&
Limousine
Comm'n,
687
F.3d
63,
68
(2d
Cir.
2012).
Andrews
v.
Blick
Art
Materials,
LLC,
268
F.
Supp.
3d
381,
393
(E.D.N.Y.
2017)
(cti
42
U.S.C.
subch.
Ill).
Id
69
Id.
70
Id
n
Id
(citing
42
U.S.C.
§
12181(7)(E)-(F)).
72
Id.
(citing
Nat'1
Fed'n
of
the
Blind,
97
F.
Supp.
3d
at
572).
448
[Vol.
34:3
2019]
DIGITAL
ACCESSIBILITY
Congress
did
not
intend
to
cover
businesses
unconnected
to
any
physical
space
open
to
the
public
under
Title
III.
The
former
doctrine
permits
the
meaning
of
doubtful
terms
and
phrases
to
be
determined
by
reference
to
other
associated
phrases.
The
latter
suggests
that
where
general
words
are
accompanied
by
a
specific
enumeration
of
persons
or
things,
the
general
words
should
be
limited
to
the
persons
or
things
similar
to
those
specifically
enumerated.
.
..
[B]ecause
all
of
the
specific
examples
in
the
statute
operate
at
concrete
physical
locations
open
to
the
public,
the
statute
must
be
construed
to
apply
only
to
such
places.
73
C.
WCAG
While
specific
digital
accessibility
regulations
have
not
yet
been
incorporated
into
the
Americans
with
Disabilities
Act,
the
Web
Content
Accessibility
Guidelines
(WCAG)
2.0
and
2.174
offer
detailed
information
75
that
can
help
online
dispute
resolvers
adhere
to
ADA
obligations.
At
one
point
there
was
a
possibility
that
the
WCAG
would
be
adopted
as
regulatory
standards.
As
Gathers
v.
1-800-Flowers.com,
Inc.
76
explains,
in
2010
the
Department
of
Justice
published
an
Advanced
Notice
of
Proposed
Rulemaking
to
revise
the
regulations
implementing
Title
III.7
In
that
Advanced
Notice
of
Proposed
Rulemaking,
the
DOJ
requested
public
comment
on
whether
and
how
the
agency
should
adopt
the
WCAG
as
its
standard
for
website
accessibility
for
Title
II
and
I1I
entities.
No
rule
or
regulation
was
ever
adopted
as
a
result
of
the
Advanced
Notice
of
Proposed
Rulemaking,
and
in
2015,
the
DOJ
announced
that
it
would
pursue
separate
rulemakings
Nat'1
Fed'n
of
the
Blind
v.
Scribd
Inc.,
97
F.
Supp.
3d
565,
572
(D.
Vt. 2015)
(citing
City
of
New
York
v.
Beretta
U.S.A.
Corp.,
524
F.3d
384,
401
(2d
Cir.
2008)).
74
Web
Content
Accessibility
Guidelines
(WCAG)
2.0
Level
AA,
WORLD
WIDE
WEB
CoNSORTIUM
(Dec.
11,
2008),
https://www.w3.org/TR/WCAG20/.
See
Markett
v.
Five
Guys
Enter's.
LLC,
No.
17-cv-788
(KBF),
2017
WL
5054568
(S.D.N.Y.
2017).
Gathers
v.
1-800-Flowers.com,
Inc.,
No.
17-cv-10273-IT,
2018
WL
839381,
at
*2
n.3
(D.
Mass.
2018).
75
Fed.
Reg.
142,
43460
(July
26,
2010).
78
75
Fed.
Reg.
142,
43465
(July
26,
2010).
449
OHIO
STATE
JOURNAL
ON
DISPUTE
RESOLUTION
addressing
web
accessibility
for websites
falling
under
Title
II
and
Title
III.
7 9
DOJ
added
that
it
planned
to
address
rulemaking
for
Title
II
first.
80
Today,
there
still
are
not
any
rules
for
Title
III,
because
in
2016
the
DOJ
withdrew
the
Advanced
Notice
of
Proposed
Rulemaking
and
issued
a
Supplemental
Advanced
Notice
of
Proposed
Rulemaking
seeking
input
only
regarding
websites
of
entities
covered
by
Title
I.81
The
United
States
District
Court
for
the
Southern
District
of
New
York
did,
however,
refer
to
the
WCAG
standards
when
it
denied
a
motion
to
dismiss
and
stated,
"Plaintiff
has
identified
steps
that
defendant
can
take
to
ensure
equal
access
to
its
website
by
the
blind,
such
as
by
using
the
Web
Content
Accessibility
Guidelines
2.0.",82
And
the
DOJ
has,
at
least
twice,
required
entities
subject
to
Title
III
to
adopt
measures
to
ensure
that
their
websites
and
mobile
applications
conform
to,
at
a
minimum,
certain
WCAG
83
2.0
success
criteria.
But
in
Robles
v.
Domino's
Pizza
LLC,
the
court
noted
that
in
one
settlement,
the
DOJ
required
the
defendants
to fashion
their
website
and
mobile
applications
to
conform
with
WCAG
2.0
Level
AA
Success
Criteria,
and
in
the
other
settlement
the
DOJ
obligated
the
defendants
to
instead
comply
with
WCAG
2.0
Level
AA
or
Level
A
Success
Criteria.8
The
plaintiff
in
Robles
claimed
that
Domino's
website
and
mobile
app
did
not
support
screen-reading
software
and
that
he
and
other
visually
impaired
individuals
could
not
customize
their
pizza
toppings,
browse,
shop,
or
complete
a
purchase.
85
Dismissing
the
plaintiffs
cause
of
action
without
prejudice,
the
court
explained
that
the
two
cited
examples
highlighted,
rather
than
dispelled,
the
vagueness
concern
asserted
by
defendant
and
demonstrated
why
a
lack
of
formal
guidance
in
this
complex
regulatory
arena
places
those
subject
to
Title
III
in
the
precarious
position
of
having
to
speculate
which
accessibility
criteria
their
websites
and
mobile
applications
must
meet.8
Obviously
frustrated
with
the
lack
of
guidance
and
the
consequent
need
to
dismiss
the
case,
the
court
called
on
Congress,
the Attorney
General,
and
the
DOJ
to
take
action
to
set
minimum
web
accessibility
standards
for the
benefit
of
the
disabled
community,
those
subject
to
Title
III,
and
the judiciary.
Confronted
with
the
same
lack
of
guidance,
other
courts
may
feel
constrained
79
Gathers,
2018
WL
839381,
at
*2.
0
Id.
81
Id
82
Markett,
2017
WL
5054568,
at
*2.
8
Robles
v.
Domino's
Pizza
LLC,
No.
CV
16-06599
SJO
(SPx),
2017
WL
1330216,
at
*7
(C.D.
Cal.
Aug.
1,
2017).
84
85
Complaint
at
11,
para.
34,
Domino's
Pizza,
2017
WL
1330216,
available
at
https://www.courthousenews.com/wp-content/uploads/2019/01/Dominos-Lawsuit.pdf
86
Id
450
[Vol.
34:3
2019]
DIGITAL
ACCESSIBILITY
to
reach
the
same
conclusion.
A
September
25,
2018
letter
from
the
Office
of
Legislative
Affairs
appears
to
support
the
position
that
courts
should
not
adopt
privately
promulgated
standards
in
the
absence
of
action
by
the
DOJ,
but
one
must
keep
in
mind
that
at
this
point
it
is
only
a
letter.
Significantly,
in
January
2019,
a
three-judge
panel
of
the
United
States
Court
of
Appeals
for
the
Ninth
Circuit
rejected
the
District
Court's
conclusion
that
Domino's
due
process
rights
were
violated
because
the
DOJ
had
not
issued
online
accessibility
standards
or
provided
technical
assistance
to
implement
those
standards.
It
instead
declared
that,
"[Tihe
Constitution
only
requires
that
Domino's
receive
fair
notice
of
its
legal
duties,
not
a
blueprint
for
compliance
with
its
statutory
obligations.
8
7
The
court
stated
the
DOJ's
position
that
the
ADA
applies
to
websites
is
clear,
and
that
it
"does
not
matter
that
the
ADA
and
the
DOJ
fail
to
describe
exactly
how
any
given
website
must
be
made
accessible
to
people
with
visual
impairments."
8
The
absence
of
specific
guidance
is
not
problematic
"because
the
ADA
and
its
implementing
regulations
are
intended
to
give
public
accommodations
maximum
flexibility
in
meeting
the
statute's
requirements.
This
flexibility
is
a
feature,
not
a
bug,
and
certainly
not
a
violation
of
due
process."
89
The
court
added
that
its
precedent
clearly
states
an
absence
of
specific
regulations
cannot
eliminate
statutory
obligations.
9 0
The
case
was
remanded
to
the
district
court
to
determine
"whether
Domino's
website
and
app
provide
the
blind
with
effective
communication
and
full
and
equal
enjoyment
of
its
products
and
services
as
the
ADA
mandates."
9
1
D.
Section
508
of
the
Rehabilitation
Act
Section
508
of
the
Rehabilitation
Act
of
1973
requires
that
all
United
States
government
technology
purchases
be
accessible.
92
Individual
states
in
the
U.S.
may
have
similar
procurement
statutes.
Government
purchases
of
ODR
systems,
including
purchases
by
court
systems,
will
only
increase
in
the
coming
years.
87
Robles
v.
Domino's
Pizza
LLC,
913
F.3d
898,
908
(9th
Cir.
2019).
8s
Id
(citing
Reed
v.
CVS
Pharmacy
Inc,
No.
CV
17-3877-MWF
(SKx),
2017
WL
4457508,
at
*5).
8
9
1d
9o
Domino's
Pizza,
913
F.3d
at
909
(citing
Fortyune
v.
City
of
Lomita,
766
F.3d
1098,
1102
(9th
Cir.
2014)).
91
Id
at
911.
92
29
U.S.C.
§
794d(a)(1)(A)
(2000).
451
OHIO
STATE
JOURNAL
ON
DISPUTE
RESOLUTION
V.
BEST
PRACTICES
FOR
DIGITAL
ACCESSIBILITY
IN
ODR
The
Americans
with
Disabilities
Act
requires
websites
and
ODR
systems
to
be
accessible.
The
following
practices
will
help
to
make
certain
ODR
systems
are
accessible:
*
Adopt
an
Accessibility
Standard:
The
international
standard
for
web,
mobile,
and
document
accessibility
is
the
Web
Content
Accessibility
Guide
(WCAG)
2.0
Level
AA
and
2.1,
which
both
offer
the
most
complete
and
specific
guidance
for
an
ODR
system.
93
System
authoring
tools
must
also
be
accessible.
The
Web
Accessory
Initiative's
authoring
tools
address
this
important
component
of
ODR
systems.
94
The
Web
Accessibility
Initiative
- Accessible
Rich
Internet
Applications
(WAl-ARIA)
was
built
by
W3C
to
support
javascript
generated
HTML
with
semantic
meanings
to
improve
the
user's
experience
by,
for
instance,
enabling
a
button
to
declare
that
it
will
launch
a
pop-up
when
pressed.
95
*
Read
and
Comply
with
ODR
Principles
and
Standards:
Although
ODR
is
still in
its
early
stages,
significant
work
is
already
being
done
to
ensure
that
ODR
increases
access
to
justice
for
everyone.
Much
of
the
attention
has
focused
on
differences
in
power
and
sophistication
that
may
exist
between
the
disputing
parties.
Understanding
and
addressing
these
concerns
will
protect
everyone,
including
persons
with
disabilities.
The
International
Council
for
Online
Dispute
Resolution
(ICODR),
building
on
The
National
Center
for
Technology
and
Dispute
Resolution's
"Principles
for
ODR
Practice,"
has
identified
Ethical
Standards
for
ODR.96
Many
of
these
Standards
provide
support
for
digital
accessibility
design
features.
ICODR
believes
that
quality
ODR
programs
must
be:
9
See
Web
Content
Accessibility
Guidelines
(WCAG)
2.0
Level
AA,
WORLD
WIDE
WEB
CONSORTIUM
(Dec.
11,
2008),
https://www.w3.org/TR/WCAG20/.
94
Authoring
Tool
Accessibility
Guidelines
(A
TAG)
Overview,
WORLD
WIDE
WEB
CONSORTIUM
WEB
ACCESSIBILITY
INITIATIVE
(Sep.
24,
2015),
https://www.w3.org/WAI/standards-guidelines/atag/.
9
Jack
Merideth,
Web
Accessibility
AKA
ally,
and
Why
It's
not
Enough
to
Say
"ADA
Compliant",
CALLIBRITY
(Jan.
25,
2019),
https://www.callibrity.com/blog/web-
accessibility-why-its-not-enough.
Merideth
explains
that it
is
preferred
to
use
semantic
HTML
tagging
(eg:
<hl>,
<table>)
when
available,
as
defined
in
the
very
first rule
of
using
ARIA.
Id
9
ICODR
STANDARDS
(INT'L
COUNCIL
FOR
ONLINE
DISPUTE
RESOLUTION
2011).
452
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DIGITAL
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o
Accessible:
ODR
must
be
easy
for
parties
to
find
and
participate
in
and
not
limit
their
right
to
representation.
ODR
should
be
available
through
both
mobile
and
desktop
channels,
minimize
costs
to
participants,
and
be
easily
accessed
by
people
with
different
physical
ability
levels.
(I
recommend
that
the
term
"accessible"
as
traditionally
used
in
the
ODR
field
be
expanded
to include
digital
accessibility
for
disabled
people.)
o
Accountable:
ODR
systems
must
be
continuously
accountable
to
the
institutions,
legal
frameworks,
and
communities
that
they
serve.
o
Competent:
ODR
providers
must
have
the
relevant
expertise
in
dispute
resolution,
law,
technical
execution,
language,
and
culture
required
to
deliver
competent,
effective
services
in
their
target
areas.
ODR
services
must
be
timely
and
use
participant
time
efficiently.
o
Confidential:
ODR
must
maintain
the
confidentiality
of
party
communications
but
also
must
be
transparent
regarding
(1)
who
will
see
what
data,
and
(2)
how
that
data
can
be
used.
(1
would
add
that
"there
cannot
be
confidentiality
for
people
with
disabilities
without
accessibility.")
o
Equal:
ODR
must
treat
all
participants
with
respect
and
dignity.
ODR
should
enable
often
silenced
or
marginalized
voices
to
be
heard
and
ensure
that
offline
privileges
and
disadvantages
are
not
replicated
in
the
ODR
process.
o
Fair/Impartial/Neutral:
ODR
must
treat
all
parties
equally
and
in
line
with
due
process,
without
bias
or
benefits
for
or
against
individuals,
groups,
or
entities.
Conflicts
of
interest
of
providers,
participants,
and
system
administrators
must
be
disclosed
in
advance
of
commencement
of
ODR
services.
o
Legal:
ODR
must
abide
by
and
uphold
the
laws
in
all
relevant
jurisdictions.
(This,
of
course,
includes
laws
relating
to
accessibility
and
non-discrimination.)
o
Secure:
ODR
providers
must
ensure
that
data
collected
and
communications
between
those
engaged
in
ODR
is
not
shared
with
any
unauthorized
parties.
Users
must
be
informed
of
any
breaches
in
a
timely
manner.
o
Transparent:
ODR
providers
must
explicitly
disclose
in
advance
(1)
the
form
and
enforceability
of
dispute
resolution
processes
and
outcomes,
and
(2)
the
risks
and
benefits
of
participation.
Data
in
ODR
must
be
gathered,
managed,
and
453
OHIO
STATE
JOURNAL
ON
DISPUTE
RESOLUTION
presented
in
ways
that
ensure
it
is
not
misrepresented
or
out
of
context.
*
Designate
a
Digital
Accessibility
Coordinator:
Assign
someone
responsibility
for
accessibility
and
think
carefully
about
where
they
are
placed
in
the
management
structure.
This
individual
must
have
the
capacity
to
reach-and
be
readily
available
to-all
the
different
departments
and
geographic
locations
in
the
enterprise.
To
achieve
the
best
possible
outcome
and
move
beyond
compliance,
think
broadly
and
avoid
automatic
placement
in
the
legal
or
risk
department.
*
Include
accessibility
in
all
requests
for
proposals
involving
digital
content
and
technology:
The
Americans
with
Disabilities
Act
prohibits
discrimination
"directly,
or
through
contractual,
licensing,
or
other
arrangements."
97
In
the
context
of
the
digital
world,
this
means
making
certain
all
vendors
understand
accessibility.
A
simple
request
that
technology
vendors
"comply
with
applicable
law"
is
not
enough.
Organizations
must
specify
accessibility
standards
in
every
request
for
proposals
(RFP)
and
require
testing
by
disabled
people
before
product
delivery.
Identify
roadmaps
or
strategic
plans
for
accomplishing
accessibility
goals
before
implementing
any
proposals.
98
*
Include
Accessibility
in
All
Technology
Contracts:
Once
a
contract
is
awarded,
accessibility
requirements
must
be
described
with
specificity.
Consider
the
level
of
detail
demanded
with
security
and
privacy
requirements
and
use
that
same
high
standard
with
accessibility.
In
Gil
v.
Winn-Dixie
Stores,
Inc.,
(currently
on
appeal
and
stayed
pending
a
bankruptcy
filing),
the
judge
found:
[T]he
fact
that
third
party
vendors
operate
certain
parts
of
the
Winn-Dixie
website
is
not
a
legal
impediment
to
Winn-Dixie's
obligation
to
make
its
website
accessible
to
the
disabled.
First,
many,
if
not
most,
of
the
third-party
vendors
may
already
be
accessible
to
the
disabled
and,
if
not,
Winn-
Dixie
has
a
legal
obligation
to
require
them
9
42
U.S.C.
§
12182(b).
98
E.g.,
2016
Roadmap
to
Web
Accessibility
in
Higher
Education,
3PLAYMEDIA
(2016),
available
at
https://uwm.edu/adaaac/wp-content/uploads/sites/374/2016/08/2016-
Roadmap.pdf.
454
[Vol.
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2019]
DIGITAL
ACCESSIBILITY
to
be
accessible
if
they
choose
to
operate
within
the
Winn-Dixie
website.
9
9
*
Train
Staff
(and
Maintain
Training):
Training
staff
about
digital
accessibility
is
not
only
about
educating
coders,
designers,
and
content
writers
about
accessibility
standards
and
accessible
design
principles.
Individuals
who
design,
manage,
and
maintain
ODR
systems
must
understand
how
persons
with
disabilities
use
computers
and
other
digital
devices.
They
must
also
know
how
to
direct
issues
to
the
appropriate
person.
In
her
book,
Structured
Negotiation,
A
Winning
Alternative
to
Lawsuits,
Lainey
Feingold
shares
stories
about
a
common
problem
that
leads
to
structured
negotiations
and
lawsuits:
consumers
receiving
poor
customer
service
from
untrained
staff.
Not
surprisingly,
staff
training
was
an
element
of
the
Winn-Dixie
court-
ordered
injunction.
10
0
*
Test
Your
Website:
Use
available
tools
to
test
for
accessibility.
WAVE,
101
for
example,
is
a
helpful
web
accessibility
evaluation
tool
developed
by
WebAIM.org
that
provides
visual
feedback
about
accessibility
by
inserting
icons
and
indicators
into
your
webpage.
Because the analysis
is
done
entirely
within
the
Chrome
browser,
valuation
of
intranet,
local,
password
protected,
and
other
sensitive
webpages
is
secure.
102
Colorblinding
0 3
simulates
the
website
as
a
color
vision
impaired
person
would
see
it.
This
Chrome
extension
can
simulate
Red-Blind/Protanopia,
Green-Blind/Deuteranopia,
Blue-
Blind/Tritanopia,
Red-Weak/Protanomaly,
Green-
Weak/Deuteranomaly,
Blue-Weak/Tritanomaly,
Monochromacy/Achromatopsia,
and
Blue
Cone
Monochromacy.104
9
Gil
v.
Winn-Dixie
Stores,
Inc.,
257
F. Supp.
3d
1340,
1346
(S.D.
Fla.
2017).;
see
also
Lainey
Feingold
&
Eve
Hill,
Technology
Vendor
Contracts
andAccessibility:
What
Evety
Business Lawyer
Should
Know,
BUSINESS
LAW
TODAY
(April
19,2018),
https//businesslawtoday.org/2018/04/hnology-vendor-contacts-accessibility-every-business-
lawyer-know/.
1o
Winn-Dixie
Stores,
257
F.
Supp.
3d
at
1351.
101
"WAVE
Evaluation
Tool,"
Chrome
Web
Store,
CHROME
(search
performed
June
21,
2019),
https://chrome.google.com/webstore/detail/wave-evaluation-
tool/jbbplnpkjmmeebjpijfedlgcdilocofh?hl=en-US.
102
id
103
"Colorblinding,"
Chrome
Web
Store,
CHROME
(search
performed
June
21,
2019),
https://chrome.google.com/webstore/detail/colorblinding/dgbgleaofjainknadoffbjkclicbbg
aa?hl=en-US.
14id
455
OHIO
STATE
JOURNAL
ON
DISPUTE
RESOLUTION
-Freedom
Scientific's
Access
with
Speech
(JAWS)'
0
5
can
be
used
to
test
website
accessibility.
*
Adopt
Testing
Protocols
that
Include
Disabled
People:
Ongoing
testing
is
critical
to
make
certain
accessibility
is maintained.
Automated
tools
can
provide
useful
data
but
should
never
be
used
alone-human
input
is
critical
to
any
testing
program.
Additionally,
testing
by
individuals
with
disabilities
must
be
a
regular
aspect
of
a
digital
accessibility
testing
program.
*
Hire
a
Consultant
when
Needed:
Public
and
private
entities
must
treat
accessibility
as
they
would
any
other
aspect
of
their
organization.
If
in-house
expertise
is
lacking,
hire
someone
to
help.
Always
interview
at
least
two
or
three
potential
consultants
and
check
their
references.
It
may
be
necessary
to
hire
more
than
one
individual
depending
on
your
specific
needs.
*
Have
an
Easy-to-Find
Accessibility
Information
Page
Linked
to
Every
ODR
Page:
An
Accessibility
Information
Page
(AIP),
also
known
as
an
Accessibility
Statement,
demonstrates
an
organization's
commitment
to
accessibility.
It
gives
persons
with
disabilities
who
encounter
a
problem
a
way
to
address
that
problem
within
the
organization
rather
than
calling
a
lawyer
or
simply
being
excluded
from
participation.
The
European
Union
Web
and
Mobile
Accessibility
Directive
requires
public
sector
bodies
to
publish
Accessibility
Statements.106
The
UK
has
recently
published
requirements for what
is
needed
in
the
statement.
107
Among
other
things,
the
page(s)
should
clearly
state
the
organization's
digital
accessibility
policies
and
services
and
include
both
a
phone
number
and
email
address
(or
a
simple
and
accessible
form)
for
a
site
visitor
to
report
a
problem
or
get
help.
Most
importantly,
the
person
on
the
receiving
end
of
the
phone
call
or
email
must
be
prompt
and
responsive.
Examples
of
Accessibility
Statements
0
5
JA
WS,
FREEDOM
SCIENTIFIC,
http://www.freedomscientific.com/Products/software/JAWS/
(last
visited
June
21,
2019).
Jack
Merideth
suggests
using
WAVE,
Colorblinding,
and
JAWS.
Merideth,
supra
note
95.
106
Council
Directive
2016/2102,
art.
7,
2016
O.J.
(L
327)
1
(EC).
107
Consultation
Information
and
Questions,
U.K.'s
Gov'T
DIG.
SERV.
(Sep.
11,
2018),
https://www.gov.uk/govemment/consultations/accessibility-of-public-sector-
websites-and-apps-new-duties-and-regulations/consultation-information-and-
questions#what-organisations-will-have-to-do-to-comply-with-the-directive.
456
[Vol.
34:3
2019]
DIGITAL
ACCESSIBLITY
in
public,
private,
and
academic
settings
can
help
ODR
providers
compose
pages.ios
*
Put
Accessibility
Enhancements
in
Release
Notes:
ODR
providers
can
let the
public
know
of
their
accessibility
commitment
by
including
enhancements
in
standard
release
notes.
In
a
2016
settlement
agreement
reached
through
a
structured
negotiation,
E*Trade
agreed
to
"include
information
about
accessibility
improvements,
as
applicable,
in
the
release
notes
for
new
E*Trade
Mobile
App
releases."
10
9
*
Make
Accessibility
Part
of
Appropriate
Job
Descriptions
and
Evaluations:
If
someone's
job
includes
accessibility
responsibility,
accessibility
should
be
included
in
that
person's
job
description
and
evaluations.
This
raises
consciousness
concerning
disability
and
demonstrates
to
employees
that
accessibility
is
an
important
aspect
of
their
work.
If
employees
understand
that
accessibility
is
a
component
of
their
job
performance
evaluations,
they
will
be
motivated
to
identify
and
remedy
problems
before
they
become
legal
issues.
*
Evaluate
Systems:
Digital
accessibility
concerns
go
beyond
websites
and
mobile
applications.
Every
stage
of
an
ODR
system
can
raise
disability
concerns
because
a
person
with
a
disability
may
be
the
next
ODR
disputant,
mediator,
lawyer,
judge,
or
court
or
company
personnel.
Emails
often
contain
accessibility
barriers
and
are
overlooked
when
thinking
about
website
access.
Digital
services,
including
services
increasingly
being
offered
in
courthouses
and
government
agencies
(that
may
soon
include
ODR
systems),
are
typically
part
of
stand-alone
kiosks-kiosks
that
must
be
accessible.o
10
Different
teams
may
be
responsible
for
different
digital
aspects
of
an
ODR
system,
but
a
holistic
approach
to
accessibility
saves
money,
leverages
resources,
and
ensures
that
the
public
is
not
inadvertently
left
out
of
any
aspect
of
the
dispute
resolution
process.
108
See
Lainey
Feingold,
Accessibility
Information
Pages
Show
Commitment
to
All
Site
Users,
LAW
OFFICE
OF
LAINEY
FEINGOLD
(Feb.
12,
2013),
https://www.Iflegal.com/2013/02/access-info-pages/.
109
E*Trade
Digital
Accessibility
Settlement
Agreement,
LAW
OFFICE
OF
LAINEY
FEINGOLD
(June
21,
2016),
https://www.Iflegal.com/2016/06/etrade-agreement/#notes.
110
See
ADA
and
Accessible
Kiosks:
Navigating
Accessibility
in
a
Touch
Screen
World,
MID-ATLANTIC
ADA
CTR.
(June
19,
2018),
http://www.adainfo.org/training/accessible-kiosks.
457
OHIO
STATE
JOURNAL
ON
DISPUTE
RESOLUTION
*
Study
and
Compare
Other
Plans:
Reviewing
plans
from
other
institutions
can
be
helpful
and
informative.
11
The
goal
of
these
best
practices
is
to
create
a
culture
where
accessibility
becomes
an
inherent
part
of
all
ODR
systems.
As
each
new
type
of
technology
or
information
is
introduced
in
the
ODR
community,
accessibility
must
be
present
from
the
beginning,
as
an
integral
way
of
doing
business
and
providing
both
private
and
government
services.
When
accessibility
is
an
afterthought,
it
is
far
more
expensive
and
can
create
frustration
and
non-participation
by
ODR
stakeholders.
The
ODR
community
must
embrace
disability
accommodations
and
digital
accessibility.
Not
as
compliance
checklists,
but
as
a
fundamental
aspect
of
how
ODR
systems
are
designed
and
implemented
around
the
world.
458
II
E.g.,
Accessibility
at
PPCC,
PIKES
PEAK
COMMUNITY
COLLEGE,
available
at
https://www.ppce.edu/accessibility-at-ppcc,
(last
visited
June
11,
2019).
[Vol.
34:3
2019]
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