AODA Alliance Submits its Brief to the Ontario Government on the Final Proposed Information and Communication Standard

June 22, 2010

SUMMARY

The AODA Alliance has finalized and submitted its brief on the final proposed Information and Communication Accessibility Standard. The brief is long and quite detailed.

This brief is quite similar to the draft brief that we circulated for your input back on October 5, 2009, which you can see at: http://www.www.aodaalliance.org/whats-new/newsub2011/send-us-your-feedback-on-our-draft-brief-on-the-final-proposed-information-and-communication-accessibility-standard/

It includes more detail to support our position. It is especially more thorough and detailed in explaining why it is essential for the Information and Communication Accessibility Standard to effectively cover standards for website accessibility and for the accessibility of self-serve electronic kiosks. It includes 4 appendices. As always, Appendix 1 lists all our recommendations.

We again want to thank all those who took the time to give us their feedback as we developed this brief. This brief reflects all the most recent developments on the issue of access to information and communication, including references to very helpful findings in the Charles Beer Report of the Independent Review on the AODA.

If you want a copy of this brief in MS Word format, click here:
http://www.www.aodaalliance.org/wp-content/uploads/2016/02/0610-infocom-standard.doc

BRIEF OF THE ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE TO THE ONTARIO GOVERNMENT ON THE FINAL PROPOSED INFORMATION AND COMMUNICATION ACCESSIBILITY STANDARD

JUNE 22, 2010

1. INTRODUCTION

This brief of the Accessibility for Ontarians with Disabilities Act Alliance offers our feedback to the Ontario Government on the final proposed Information and Communication Accessibility Standard. Our recommendations in this brief are all listed in Appendix 1. Background on the AODA Alliance is available at: http://www.www.aodaalliance.org

The final proposed Information and Communication Accessibility Standard is dated August 28, 2009. The Information and Communication Standards Development Committee submitted its final proposal for the Information and Communication Accessibility Standard to the Ontario Government on May 29, 2009.

2. SUMMARY OF OUR POSITION

Our position in this brief is summarized as follows:

We commend the final proposed Information and Communication Accessibility Standard as a good effort at addressing the information and communication barriers which persons with disabilities face. If strengthened as we recommend in this brief, this would be a strong and effective accessibility standard.
The standard still needs to be strengthened in accordance with the recommendations in our January 22, 2009 brief on the initial proposed Information and Communication Accessibility Standard.
The standard’s classification of different organizations, for purposes of setting time lines, should not use the number of an organization’s employees to decide whether the organization will have shorter or longer time lines.
Time lines in the standard should be reduced, especially in the area of making website content and information technology accessible.
The standard needs to be clarified to be sure that its contents on barrier-removal and prevention are mandatory, and not optional.
The standard for web content accessibility should be raised to the internationally-recognized level of WCAG 2.0 Level AA.
The standard’s requirements should clearly and fully apply to employment-related information and communication.
The standard’s requirements need to be strengthened in the areas of an organization’s policy on accessible information and communication, and the training of professionals and information technology specialists on information and communication accessibility.
The standard needs to be expanded to include specific requirements, to go into effect promptly, on information and communication accessibility for electronic kiosks, accessibility of meetings, as pertains to the Ontario Government and larger broader public sector organizations, municipal and provincial elections, public signage, public libraries, court documents, and user instructions and manuals.
Larger organizations should be required to designate an individual from their existing workforce to have lead responsibility for information and communication accessibility.

3. RE-SUBMITTING OUR JANUARY 22, 2009 BRIEF ON ACCESS TO INFORMATION AND COMMUNICATION

We commend the Information and Communication Standards Development Committee for its hard work in developing the final proposed Information and Communication Accessibility Standard. We believe that this final proposal needs some significant changes to make it strong and effective. Nevertheless, this final proposal is clearly better than the only standard enacted to date, under the Accessibility for Ontarians with Disabilities Act, namely the Customer Service Accessibility Standard. It is also clearly better than the final proposed Transportation Accessibility Standard.

As a general matter, we here re-submit our January 22, 2009 brief on the initial proposed Information and Communication Accessibility Standard. We ask that the Information and Communication Accessibility Standard include all the measures and proposals that are set out in that earlier brief. That brief is available at: http://www.www.aodaalliance.org/whats-new/newsub2011/please-endorse-the-aoda-alliances-brief-on-the-initial-proposed-information-and-communication-accessibility-standard/

The rest of this brief sets out specific recommendations that supplement the contents of our January 22, 2009 brief. Below, we highlight certain specific parts of that brief. This does not take away from the importance of all the measures we recommended in that earlier January 22, 2009 brief.

We therefore recommend that:

1. The Information and Communication Accessibility Standard that the Government adopts should fully implement the principles and recommendations set out in the AODA Alliance’s January 22, 2009 brief on the initial proposed Information and Communication Accessibility Standard.

4. THE STANDARD’S OBJECTIVES

We strongly commend the Information and Communication Standards Development Committee for stating the standard’s purpose as follows:

“It is the Committee’s vision that by 2025, all information and methods of communication to and from an individual will be designed to be accessible to persons with disabilities consistent with human rights law, the French Language Services Act (1990) (where applicable) and inclusive design principles.”

We are eager for this language to be incorporated not only as a vision statement, but as an explicit purpose of the standard itself.

We therefore recommend that:

2. The standard state that its purpose is that on or before 2025, all necessary information and methods of communication to and from an individual in connection with the provision of goods, services, facilities or employment in Ontario will be designed to be fully accessible to persons with disabilities consistent with human rights law and inclusive design principles.

The standard further articulates its objectives as follows:

“In providing accessible information and communications, the goal is for organizations to:
communicate with a person with a disability in a manner that takes into account the person’s disability;
give the individual the same amount of time as given to others to review, respond or use the information and communications considering the urgency of the situation;
provide the same quality (up-to-date, complete, and accurate) as is available to others; and
provide the same availability in terms of time and place as is available to others.”

The intent here is commendable. However, it can at points conflict with important human rights requirements.

The aim of equality is not identical treatment but equal opportunity. The final proposed standard can itself create a barrier, where it states: “give the individual the same amount of time as given to others to review, respond or use the information and communications considering the urgency of the situation.” A person, because of mobility impairment, learning disability, intellectual disability or other disability-related need, may require more time to absorb and use the information. Giving them the same time as others can create a barrier to access.

We therefore recommend that:

3. The standard be amended to provide a guarantee of an equal opportunity to review, respond or use the information and communications considering the urgency of the situation.

5. DEFINITION OF CLASSES OF ORGANIZATIONS

We remain concerned that the definition of classes in the final proposed Information and Communication Accessibility Standard continues to be based on the number of an organization’s employees. We repeat what we said on this issue in our January 22, 2009 brief on the initial proposed Information and Communication Accessibility Standard (ICAS). We regret that the Information and Communication Standards Development Committee did not adopt our advice:

“2. NEED TO RE-DEFINE CLASSES OF ORGANIZATIONS INCLUDING “SMALL BUSINESS.”

We agree that small business should be subject to a different set of requirements, and should get more time under the ICAS. We support the view that there should not be a “one size fits all” approach to any standard under the AODA.

That said, we are very concerned about the definition of “small business” that this standard uses, namely: Private sector or non-profit organizations with 1-19 employees (except those which the ICAS defines as providing “critical services”). For purposes of this accessibility standard, the number of employees, standing alone, may not be a proper way to find out if the business is small or large. A business might have only a few employees, but may be a franchisee of a huge, well-resourced chain, with ample information and communication infrastructure and supports available. A business with only a few employees may have substantial assets, substantial revenues, and substantial profits. It may have a larger number of workers with whom it has contracted as independent contractors, rather than as employees (like many taxi companies).

It would be better to come up with a definition of small business which takes into account these variables, but which is also clear and easy to follow. For an AODA standard, a business should be able to know at a glance whether it falls within the small business category.

Some have suggested that the definitions of the classes in the ICAS should be the same as those used in the customer service accessibility standard to provide consistency for organizations that must comply with the AODA. We recognize the benefit of consistency between the different accessibility standards. However, there are nevertheless good reasons for using a different definition of small business for the ICAS.

We have shown elsewhere that the customer service accessibility standard is fundamentally defective and flawed. See: http://www.www.aodaalliance.org/2007-ontario-election/mcguinty-governments-new-customer-service-accessibility-standard-is-weak-and-ineffective/

The Customer Service Accessibility Standard should not be used as a model for any future standards. Two wrongs don’t make a right. The customer service accessibility standard was developed before the government took several corrective measures promised in the 2007 Ontario election, at the request of the AODA Alliance, to make the work of the standards development committees fairer to the disability community, and more effective. At the time the customer service accessibility standard was developed, the disability community did not have equal representation and voting on any standards development committee. Committees were not required to vote clause-by-clause on proposed standards. The government had not committed to provide staff support to the disability sector to help them fairly and effectively take part in the process. To see what the government promised subsequently in the 2007 election, visit: http://www.www.aodaalliance.org/whats-new/newsub2011/liberal-party-writes-aoda-alliance-with-election-commitments-regarding-disability-accessibility/

We have called on the Ontario Government to revisit and improve the customer service accessibility standard. Among other things, the definition of small business in that standard merits review. It should not be perpetuated in other standards, such as in the ICAS.

Moreover, the classification of organizations, for purposes of the customer service accessibility standard, may simply not be the same as should be the case for the information communication accessibility standard. For purposes of customer service, it may be that the number of employees should be the sole or dominant criterion for deciding which is a small business. Nevertheless, it may not be the most appropriate way to make this assessment, for purposes of deciding on compliance with information and communication accessibility requirements for people with disabilities.

In fact, this initial proposed ICAS wisely recognizes that the Customer Services Accessibility Standard’s “small business” classification doesn’t fully fit the needs of the ICAS. The initial proposed ICAS prudently provides that some small businesses and organizations nevertheless should meet higher accessibility standards, along shorter timelines than other small businesses. Those that are treated as different are what the ICAS designates as providers of critical services, e.g. doctors, lawyers, and organizations providing financial and counselling services. We support the ICAS’s recognition of the different status of these critical service-providers. We recommend that the standard be made as clear as possible so that organizations will easily know whether they fall inside or outside that “critical service provider” category.

We also support a commentary accompanying the ICAS, which notes that condominium corporations may have zero employees. Yet they may have important accessible information and communication needs for residents with disabilities that they should meet, and would be well-able to meet. They shouldn’t be treated by the ICAS the same as a small “mom and pop store.”

We add that it is commendable to harmonize the various accessibility standards where possible. However, that harmonization should not be at the price of the effectiveness of a standard.

It may be preferable, for example, that for purposes of its duties under this standard when it provides goods, services or facilities to the public, an organization might be classified by the number of its clients or customers. Even if it has few employees, it may have more expectations of it under the Information and Communication Accessibility Standard if it actually serves a large number of clients or customers per year.

It is also possible to use different classification systems within the Information and Communication Accessibility Standard. For example, this standard could generally use criteria for defining classes other than numbers of employees. However, where this standard speaks to duties of employers to provide accessible information and communication within the workplace, it could use an organization’s number of employees to delineate applicable time lines.

The fact that the Charles Beer Independent Review of the AODA recommended harmonization of the forthcoming accessibility standards to address transportation, employment and information and communication, does not necessarily dictate that all of these standards must use the identical definitions of classes of organizations. “Harmonization” does not demand slavish rigidity. The Government has voiced the desirability of flexibility in the accessibility standards. We thus are seeking flexibility here.

We therefore recommend that:

4. The definition of classes of organizations be amended so that it is not governed solely by the number of employees in an organization. The number of an organization’s employees could be used as a key criterion for those parts of the Information and Communication Accessibility Standard that address duties of an organization as employer towards its employees.

6. TIME LINES

Time lines mandated under the standard must be shortened, to reflect the fact that organizations have already had ample notice to make changes in the area of access to information and communication, and have been under a duty under the Ontario Human Rights Code to make such information and publications accessible since as far back as 1982. that was when disability discrimination was first prohibited in Ontario under the Ontario Human Rights Code. The time lines should not operate on the incorrect implicit premise that the obligation to take action on this is suddenly arising for the first time, on the date that the standard goes into effect, as if there had been no prior obligation to meet these requirements.

Any delay in these time lines is very counter-productive. It would unnecessarily add to the cost burdens imposed on organizations.

For example, organizations update web content on a daily, weekly, monthly, or at least quarterly basis. Apart from accessibility considerations, if an organization does not periodically update its website, their web content may not continue to work. Users may not be able to view the old web content on new web browsers, via new search engines and using other new technology.

For the most part, posting accessible web content costs nothing more than posting inaccessible web content. The only exception is captioned and described video material. In the case of this adaptation, captioning and describing the video has many other benefits, including, e.g. facilitating the indexing and searching of that web content. As well, posting accessible web content makes the information more useful to many, in addition to persons with disabilities, such as the growing number of PDA users (e.g. those using Blackberrys or iPhones.

To delay web content accessibility for five years or more is technologically comparable to saying that centuries are required for meaningful change. It reflects a misconception of what needs to be changed to make something accessible. To achieve accessibility, an organization does not need to get rid of its pre-existing low level enterprise systems or services. All that needs to be modified is the end-user interface.

If an organization does not need to start posting accessible information on its website for two years after the standard goes into effect, this creates the real and material risk that over the intervening two years, that organization will post inaccessible materials on its website. That organization will then have to incur the eminently preventable costs of later retrofitting that information. If, instead, the standard requires posting accessible information on websites from the date that the standard goes into effect, then that same organization would post accessible information on its website over that two year period. That would avoid the cost to retrofit. This shows that delayed implementation, which is intended to save costs, would end up instead creating avoidable costs.

Any delaying the implementation of web content accessibility will hurt Ontario for additional reasons. The mandatory standards we seek here are being increasingly required in other jurisdictions. As such, Ontario organizations will lag behind, and be at a competitive disadvantage, if they do not meet requirements such as web accessibility in the short term.

To help organizations meet shorter time lines, especially in the area of web content accessibility, the Ontario Government should promptly release handy resources for organizations. This could include a freely available web authoring tool that produces accessible Web content for organizations. Small organizations would especially benefit from this. This will greatly reduce costs and confusion. It will make accessible Web site design feasible for all Web authors, not just specialists. This can and should be done now, even before the Information and Communication Accessibility Standard is enacted and becomes enforceable. This is consistent with the recommendations in the Charles Beer Independent Review of the AODA that emphasized the need for the Ontario Government to provide obligated organizations with more tools, education and resources to facilitate their compliance with accessibility standards under the AODA.

It is very important that the standard’s timelines include interim benchmarks. People with disabilities should not have to wait for a period of many years before they are able to take steps to enforce their rights, in the case of an organization that is palpably lagging behind. If interim benchmarks are required in the standard, then compliance and enforcement initiatives can be undertaken where needed, well before any final time lines are reached.

We recognize and respect the fact that accessibility standards under the AODA may be designed to apply differently to small businesses in some circumstances. However, we do not believe that small businesses should always be given much longer time lines for taking action under the accessibility standards. As we suggest above, the longer organizations can post inaccessible information on their website, including small organizations, the greater will be the cost of their later fixing this manifestly-preventable barrier. For example, shortly after the standard goes into effect, for example, any organization, large or small, should be required to post an MS Word or HTML version of a document that they choose to also post on line in PDF format.

We therefore recommend that:

5. The time lines in the standard, and especially as relate to web content, should be reduced.

6. Any time lines set in this standard should:

a) Include monitorable and enforceable interim benchmark requirements, where the time line is more than 2 years after the standard goes into effect;

b) Take into account the fact that all organizations have been under a duty to provide accessible information and communication since 1982 under the Human Rights Code;

c) In the case of the Ontario Government, should take into account the fact that the Ontario Government has already been under an obligation to make available to the public accessible websites, accessible government documents on request, and the like since 2002 pursuant to the Ontarians with Disabilities Act 2001.

d) In the case of any public or private sector organization, take into account the fact that where longer time-lines are imposed, this can create unnecessary and avoidable costs for that organization.

7. The standard should be amended to set a date by which the Ontario Government will make publicly available free web authoring tools and other resources to help reduce the cost to other organizations to comply with the standard, and the time they will need for compliance.

Some have suggested that the private sector, and possibly even the broader public sector, should not be obliged to comply with any new accessibility standard under the AODA until the Ontario Government has fully complied with that accessibility standard. The Ontario Government, it is argued, should lead by example. If the Ontario Government is not yet in full compliance, why should others have obligations to act?

We respectfully reject such an approach. The time lines set in this or any accessibility standard under the Accessibility for Ontarians with Disabilities Act should not be designed around that approach.

It is always good for the Ontario government to lead by example. However it does not follow from this that other sectors should be able to do nothing until the Ontario Government reaches full compliance.

The Ontario Human Rights Code requires each and every organization in Ontario that is under provincial jurisdiction that provides goods, services, facilities or employment, to remove and prevent barriers against persons with disabilities. The Human Rights Code does not suspend that duty for private sector organizations, or for municipalities, until the Ontario Government fulfils its duty to remove and prevent its own barriers. All these organizations have concurrent duties to obey the Human Rights Code. We don’t tell private sector organizations that they can keep polluting until the Ontario government stops polluting.

Moreover, the Ontario Government is not now a model of how to achieve the accessibility of information and communication. As addressed below, while there has been some commendable progress, the Ontario Government’s compliance with its duties under the Human Rights Code, and the Ontarians with Disabilities Act 2001, has been uneven, tardy and spotty. As but one illustration, especially up until recently, the problematic PDF format has continued too often to be used for documents circulated by the Ontario Government, without also always providing the same document in a more accessible format. This illustrates the inadequate and hap-hazard way that the Ontario Government has approached information and communication accessibility. Indeed there appear to be some who reportedly have unfortunately spread the inaccurate claim that PDF documents can be made to meet the accessibility needs of persons with disabilities.

The Ontario Government is in some respects an example which other organizations should not now follow. It is hoped that smaller, more responsive organizations will be able to change their practices with greater speed and commitment.

We agree that time lines under the ICAS should give more time to an organization to take action where there is more work they need to do, and where the organization has fewer resources with which to do it. However, this should not be further delayed because of some arbitrary view that the Ontario Government must finish their work before others get started.

We therefore recommend that:

8. Any time lines in the standard should not delay required work by any organization on the basis that the Ontario Government must first fulfill its obligations before other organizations need work on removing and preventing their own barriers.

7. NEED FOR AS MUCH CLARITY AND SPECIFICITY OF MANDATORY REQUIREMENTS AS POSSIBLE

We found the final proposed Information and Communication Accessibility Standard at times difficult to read and unclear. This adversely impacts on our ability to comment on the proposed standard.

We want to ensure that the Information and Communication Accessibility Standard includes clear, detailed, specific readily enforceable mandatory requirements in all key areas. It is vital that the standard be very clear, so that organizations know what they have to do and by when they have to do it, without needing to hire lawyers to explain it to them. This clarity is also needed to ensure that compliance can be effectively monitored, and where needed, easily enforced.

There are situations where the wording of the standard itself seems narrower than the Standards Development Committee’s commentary that was intended to explain what the standard was meant to achieve. We do not offer a full list of these.

As one example, s. 5 of the standard addresses “Emergency and Public Safety Information.” Section 5.1 sets out what information is to be provided to the public:

“Organizations shall provide the following emergency and public safety information where this information is provided under existing law or other requirements:”

This makes it sound like the standard only requires accessible emergency information to be provided to the public where “information is provided under existing law or other requirements.” In other words, if an organization chooses to give the public more information on emergency matters than is required under law, the standard does not require that supplemental information to be accessible to persons with disabilities. This would make no sense. It would certainly not comply with the Ontario Human Rights Code.

The commentary accompanying this provision in the standard shows that the Information and Communication Standards Development Committee did not intend for the standard to say what it in fact says. Commentary 11 says:

“In clause 5.1, the phrase “under existing law or other requirements” is intended to include information that is required by law and does not exclude “smart practices” that go beyond legal requirements.”

The Commentary presents a good recommendation. The standard itself, by being far narrower, is unacceptable.

Where, as in this example, the commentaries provide greater protection for access to information and communication than does the wording of the standard’s provision that the commentary accompanies, we support the enactment of the broader rights set out in the commentary, and not the narrower wording of the standard itself.

We therefore recommend that:

9. Wherever a commentary, accompanying a section of the standard, provides more protection for the rights of persons with disabilities than does the wording of the final proposed standard itself, the standard that is enacted should implement the commentary, and not the narrower wording of the final proposed standard.

At points it is difficult to understand which measures in the final proposed standard are requirements and which are mere recommendations or options. For example, parts of the proposed standard include helpful specificity. However, it is not made clear that these specifics are in fact mandatory, and hence, enforceable.

Much of the standard’s specificity is found in Appendixes A and B. It is far from clear that these appendices are designed to be mandatory. The Standard itself states:

“6 Technical Requirements
In providing accessible information and communications including websites, alternate formats and communication supports and services, organizations shall refer to Appendices A and B. Appendix A provides choices for organizations in providing accessible formats and communication supports and services. Appendix B provides a guide on technical specifications for implementing the requirements of this standard.

6.1 New Websites
Organizations shall make new websites accessible in accordance with Appendix B.

6.1.1 New stored web content
Organizations shall make new stored web content on new websites accessible in accordance with Appendix B.

6.2 Existing websites
Organizations shall make their websites (e.g., website user interface and navigation) accessible in accordance with Appendix B.”

And later

“6.4 Alternate formats, communication supports and services
For information and communications that are not provided through accessible web content on accessible websites, organizations shall have the means (either internally or externally) to deliver alternate formats and other related communication supports and services upon request.
When communicating with a person with a disability, the organization shall do so in a manner that takes into account the person’s disability.

Note: Appendix A provides organizations with a list of choices that can be used either individually or in combination when providing and receiving information and communications to and from a person with a disability.

Comment 13

This clause is designed to allow organizations the flexibility to select the most appropriate formats and communication supports and services and potentially allow for other innovative formats and methods of communication. Organizations are required “to have the means” to provide accessible information and communications. This requires organizations to be prepared to provide information and communications as outlined in Appendix A in a way that takes into account the person’s disability. For example, having the means could mean:

Training employees for how to communicate with persons with disabilities;
having accessible electronic files ready to convert into accessible formats; and
knowing who to call for accessible formats.

The Committee expects organizations to make a choice from the list of options in Appendix A that best meets the specific consumer’s need. Appendix A enhances the requirements already outlined in the Customer Service Regulation by providing examples.”

Later in the standard, the appendices state at their outset:

“Appendix A – Choices for Accessible Formats and Communication Supports and Services

Appendix A provides organizations with a list of choices that can be used either individually or in combination when providing and receiving information and communications to and from a person with a disability.

Appendix B provides technical specifications for implementing accessible formats and communication supports and services.”

Further demonstrating this difficulty, Appendix A lists a range of alternate formats that can be used for accommodating the information and communication needs of people with disabilities. The overall final proposed standard does not make clear when a person with a disability is entitled to an alternate format, and if so, which format. It is not clear, for example, whether under Appendix A, which appears to give guidance, not set mandatory requirements, an organization would have the unilateral choice of which alternate format to provide.

It is important to clarify that both of these appendices are not just a “guide,” and that they set out mandatory requirements. This is essential to ensure that there can be effective enforcement of the standard.

We therefore recommend that:

10. The standard be revised to make its requirements and related time lines very clear and easy to understand without needing a lawyer to explain it.

11. Appendix A and Appendix B be amended to ensure that their specifics are mandatory, and not merely a “guide.”

8. ACCESSIBLE WEB SITES

We commend the final proposed standard for containing specific measures aimed at ensuring accessible web sites. We are, however, very concerned that the final proposed Information and Communication Accessibility Standard sets far too low a technical standard for website accessibility. The standard states:

“6.1 New Websites
Organizations shall make new websites accessible in accordance with Appendix B.

6.1.1 New stored web content
Organizations shall make new stored web content on new websites accessible in accordance with Appendix B.

6.2 Existing websites
Organizations shall make their websites (e.g., website user interface and navigation) accessible in accordance with Appendix B.

6.3 Existing stored web content
Organizations shall provide any existing stored web content on their websites in an accessible format upon request.

Note 1: the requirements in Sections 6.1, 6.2, and 6.3 related to websites include internal and external organizational websites.

Note 2: the requirements in clauses 6.1, 6.2, and 6.3 apply only to web content an organization can control either directly or through a contractual relationship.

Comment 12

The intent is for organizations to have accessible websites in the future.

The Committee withdrew the previous clauses on IT-based Information and Communication systems and on business enterprise systems based on public review feedback. Requirements for business enterprise systems were primarily for ensuring that people with disabilities have access to jobs requiring the use of these systems. The accessibility of employment related functions will be addressed by the Employment Accessibility Standards Development Committee.

Stored web content refers to the information that is stored in a database and is retrieved or displayed upon initiation by a user (e.g., documents, videos, audio files, records and archived material).

Opportunities for Guidance:

Guidance materials should:

indicate that organizations have the flexibility to make their existing websites accessible using readily available web authoring tools;
recommend that once organizations achieve Level A compliance of W3C WCAG 2.0 within the specified timeframes, organizations should aim to achieve W3C WCAG 2.0 level AA or higher for all web sites and any new web content; and
assist organizations to determine if they are in compliance with the requirements.”

Appendix B states:

“B.1.0 Accessible web pages / websites (user interfaces, navigation)

Web sites and web content should be compliant with W3C Web Content Accessibility Guidelines 2.0 (WCAG 2.0), level A.”

For the following reasons, we propose that the Information and Communication Accessibility Standard fix a single mandatory requirement that organizations reach Level A.A, not merely the lesser and inferior Level A.

First, we note that the international trend is now increasingly aiming at level AA, not the Level A that is recommended in the final proposed Information and Communication Accessibility Standard. It is important for the standard to set the Double A (AA) Standard for website accessibility, lest Ontario inexplicably and unjustifiably lag behind other key players around the world. It would be counterproductive for Ontario businesses and public sector entities to work towards providing a lower level of access. It would hurt Ontario in this world of increasing international competition, especially in the realm of the World Wide Web which is a hotbed of easily-facilitated international commerce.

We note that the Government of Australia has committed to bring its own websites into compliance with WCAG 2.0 Level A.A by 2015. It set an interim benchmark of reaching Level A by 2012. See: http://webpublishing.agimo.gov.au/Accessibility

Australia’s Disability Discrimination Act is considerably weaker than Ontario’s Human Rights Code and the AODA. Ontario should not view Australia as setting the ceiling in this area. To see a chart of website accessibility requirements in the various U.S. states, up to date as of 2008 (predating the W3C Consortium’s release of the WCAG 2.0 standard), visit:
http://accessibility.gtri.gatech.edu/sitid/stateLawAtGlance.php

Second, no one to our knowledge has claimed that Level A compliance is sufficient to meet the accessibility needs of persons with disabilities.

Third, we have been given no principled reason for the Standards Development Committee recommending Level A, not Level AA. From discussions with the Ministry and some members of the Information and Communication Standards Development Committee, it is not even clear to us that the Information and Communication Standards Development Committee in fact intended to only recommend the inferior Level A. In its initial proposed Information and Communication Accessibility Standard, that Standards Development Committee had recommended the higher Level AA. From what we have been able to find out, there is no good record of the Standards Development Committee’s deliberations or discussions on this issue when it voted on the final proposed Information and Communication Accessibility Standard.

This is especially troubling, since their deliberations are supposed to be properly documented in publicly posted minutes. . Section 8(9) of the AODA requires:

“ (9) A standards development committee shall keep minutes of every meeting it holds and shall make the minutes available to the public by posting them on a government internet site and by such other means as the terms of reference may provide.” pursuant to s. .

Moreover, Premier McGuinty’s 2007 election promises to the AODA Alliance included a commitment that Standards Development Committees could vote clause-by-clause on any proposed accessibility standard. In his September 14, 2007 letter to us, Premier McGuinty committed that his Government agreed to “…Allowing the standard development committees to vote on individual clauses, to be put forward for the proposed standards.” We have been told by the Government that this procedure has been followed since that election commitment.

Had there been a separate debate and vote on whether the final Information and Communication Accessibility Standard would require Level AA as the initial proposed standard stated, or whether the Standards Development Committee deliberately wanted to reduce it to Level A in its final proposed standard, so serious a matter would have been the subject of a separate vote, and that discussions on it would be well-document in the minutes of the Standards Development Committee.

Fourth, In recommending Level AA, we emphasize that this standard should be seeking to meet or exceed the accessibility requirements of the Ontario Human Rights Code. If an organization were challenged under the Human Rights Code for having an inaccessible website, it is our position that that organization would not be able to show that meeting Level A accessibility standards would be feasible, but meeting Level AA. requirements would cause it undue hardship. It would be impossible to show that no organization in Ontario could meet Level AA., justifying a standard under the AODA that lowers the bar to the inferior Level A.

There has been increasing litigation against inaccessible websites elsewhere, especially in the U.S. Case settlements and decisions have imposed detailed accessibility requirements. In recent years, examples have included requirements to comply with WCAG 2.0 Level A.A. (See examples of cases evolving over the past decade in Appendix 3)

We believe that Level AA is not so much more demanding of organizations that it would meet the Human Rights Code requirement of undue hardship, so as to justify an organization in not fulfilling it. Appendix 2 to this brief sets out the key differences between Level A and Level AA. (apart from requirements of captioning of audio content and audio description of video content). It shows that requirements in Level AA provide more accessibility for persons with disabilities, but do not impose significant added burdens on organizations who operate these websites.

Whether the Information and Communication Accessibility Standard requires Level A or Level AA, an organization covered by the standard will need to review its web content practices and bring them up to the standard’s requirements. This activity will be comparable whether the organization is trying to meet Level A or Level AA (again apart from audio description and captioning, addressed further below). It thus makes no sense to require the lower level of accessibility in Level A. For an organization’s efforts, they should get more yield on the accessibility front, not less.

We acknowledge that the Level AA. captioning and audio description requirements are potentially different as they may require more effort by an organization than the other ingredients in Level AA. That does not justify a wholesale rejection of all of Level AA., or even an exclusion of the Level AA. audio description and captioning requirements from the Information and Communication Accessibility Standard.

Evolving technology will make it easier to provide captioning and audio description features on websites. Tools for automated captioning of audio information are already becoming available. Voice recognition speech-to-text software is very advanced. It is getting better and cheaper all the time. Last year, Youtube announced an automatic captioning service for videos posted on that famous and popular website. These will now be available for millions of English language videos with other languages coming on line over the next months, according to a BBC report. See: http://news.bbc.co.uk/2/hi/technology/8550830.stm

While the automated captioning technology reportedly is not perfect and can make errors, this example nevertheless demonstrates how quickly-evolving technology makes the provision of accessibility cheaper and easier all the time. Previously, captioning required labour-intensive manual transcription of the spoken word.

To address the narrow area of captioning and audio decryption, it is possible, for example, to set out different requirements for different classes of organizations, and/or for different categories of audio and video information. For example:

a) Audio description and captioning requirements might be applied to large business and the public sector, but might be deferred for small business;

b) Audio description and captioning requirements could apply to audio or video material posted on the web in advance, as opposed to live-streamed material, since simultaneous captioning and audio description presents challenges that do not apply when dealing with previously-created audio and video information;

c) Captioning and audio description requirements can more readily attach to information that is especially vital to access to services, goods, facilities or employment opportunities conveyed through a website,.

Fifth, for the Government to make this accessibility standard clearly meet the Human Rights Code level of accessibility helps avoid the risk of obligated organizations facing different obligations under the AODA and the Ontario Human Rights Code. Obligated organizations will not want to go through the effort of meeting a new accessibility standard for information and communication, only to face successful human rights litigation because their websites still do not live up to the requirements of the Ontario Human Rights Code. It must be remembered that the AODA was enacted to make the rights guaranteed in the Human Rights Code a reality in the lives of persons with disabilities. The AODA does not derogate from the Human Rights Code. Section 38 of the AODA provides:

“ 38. If a provision of this Act, of an accessibility standard or of any other regulation conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail.”

The Charles Beer Independent Review of the AODA specifically addressed this issue both from the perspectives of the disability community and the business community, in a manner that supports our position. It found:

“The harmonization issue has a larger dimension, beyond how accessibility standards fit together. This involves the relationship between the AODA and other legislation, particularly the Human Rights Code, and with other government initiatives.

Human Rights Code

The AODA can lead to improved accessibility for persons with disabilities by using a standardized approach that complements the individualized approach to accessibility adopted by the OHRC.

Written Brief, The Law Society of Upper Canada

Because the Human Rights Code has primacy over other legislation, the obligated sectors are concerned about double jeopardy. Compliance with AODA standards would not necessarily represent compliance with the code. Hence organizations that meet the standards could still be subject to complaints of discrimination by individuals. Proceedings before the Human Rights Tribunal of Ontario could result.

The OHRC has always taken the position that while the [Human Rights] Code itself is the primal law in Ontario for disability rights, the Code and the OHRC must not stand alone. Complementary legislation, policies and programs that promote and enforce compliance are very necessary for achieving a barrier free society.

Written Brief, Ontario Human Rights Commission

Representatives of people with disabilities had a different viewpoint. They were concerned that standards under the AODA might provide a lower level of accessibility than the Human Rights Code calls for. The code requires accommodation of the needs of persons with disabilities, up to the point of “undue hardship.” Setting the bar lower would defeat the intent of the AODA, which is to achieve accessibility without forcing people with disabilities to fight barriers on a case-by-case basis.

The way these two laws co-exist and interact is confusing to many. It was suggested that the AODA should have clarified the relationship between the two measures.”

In the case of public sector organizations that are bound by the Canadian Charter of Rights and freedoms, the same concern applies with even more force. The websites of those organizations must also comply with s. 15 of the Charter (equality rights for persons with mental or physical disabilities).

This entire concern has an added dimension from the accessibility perspective. The money spent on litigating Charter or human rights cases would be better spent on providing accessibility. The Information and Communication Accessibility Standard could avoid the waste of these litigation expenses by ensuring the higher level of web accessibility in Level AA. The best way to ensure that obligated organizations do not face this is to ensure that the Information and Communication Accessibility Standard sets a web accessibility requirement that clearly meets the requirements of the Ontario Human Rights Code. Level AA would do this. Level A would not.

Sixth, some might suggest that the Government should only require Level A now, and delay any requirement of Level AA. for some period of years. We disagree with such a wasteful approach. It would require organizations to undertake two successive accessibility web reviews, rather than one, to get to the same accessibility destination. That doubling of training requirements increases the cost to those organizations for achieving the needed level of accessibility. In the meantime, persons with disabilities would have to endure inaccessible websites for a longer period, rather than a shorter one. That approach thus benefits no one. It will likely generate backlash from obligated organizations.

Whichever accessibility standard is set, be it Level A or Level AA, organizations will need a proper web-authoring tool that ensures that content that is posted on the web meets required accessibility standards. So long as an organization is acquiring this new web authoring tool, it would be wasteful and duplicative to first acquire one that meets only Level A requirements, and then later have to acquire a second web authoring tool that will also meet Level AA. requirements. It would also be wasteful for obligated organizations to have to train themselves twice in succession on web accessibility, first to learn Level A, and a period of time later to unlearn Level A and then learn Level AA instead.

Seventh, it is important for the Information and Communication Accessibility Standard to set Level AA., not merely Level A, not only for the benefit of Ontarians with disabilities but also for the benefit of others around the world. If Ontario sets the lower Level A, there is a real risk that other jurisdictions will be lobbied by business or other interests in other jurisdictions to follow that inferior lead. By passing the AODA, the Ontario Government has said that it seeks to become a world leader on accessibility, setting an examples that other jurisdictions should want to follow. If Ontario now sets too low a standard for website accessibility, it will do the opposite. It will be a bad example that persons with disabilities, including Ontarians with disabilities, will urge other jurisdictions not to follow.

It was extremely unfortunate and counterproductive that the final proposed Information and Communication Accessibility Standard referred to Level A, rather than Level AA. A number of organizations in Ontario want to bring themselves into compliance with accessibility requirements even before they are enacted into formal accessibility standards. If those organizations consulted the final proposed Information and Communication Accessibility Standard, they would think that all they need to do is make their websites comply with the inferior Level A, not the more accessible Level A.A. It is important for the Government to get the word out as soon as possible that organizations should work towards Level A.A., not merely the inferior Level A.

We therefore recommend that:

12. The standard be amended to require web content to meet W3C Web Content Accessibility Guidelines 2.0 (WCAG 2.0), level AA, and not only the inferior Level A.

We share the core aim of the final proposed standard that new web postings be more promptly required to be accessible, but that pre-existing web content be subject to a principled retrofit regime. We are, however, concerned that the regime designed for this in the final proposed standard may create unnecessary problems.

We want to avoid the inadvertent creation of loopholes in the standard that let an organization delay website accessibility. For example, it would be undesirable for an organization to be able to put up a single web page before the standard goes into force, as a place holder, to claim that it is a pre-existing website, not a new one.

We therefore recommend that:

13. The standard be amended to make it clear that as of a date soon after the standard’s enactment, all new content posted on a website should be posted in an accessible way, whether the website is a new website or a pre-existing one.

It is not now clear from the final proposed standard that its web accessibility requirements will cover Mobile Web, location based services and other internet delivered services over mobile systems or smart environments (e.g., GPS wayfinding, services such as “find the nearest…”). This is a quickly emerging area. Ontario could and should mandate accessibility in this context from the start. This would also initiate or support innovative ways of addressing barriers in other areas such as talking signs, audio tours, delivery of captions and descriptions.

We therefore recommend that:

14. The standard’s web accessibility requirements should be expanded to include Mobile Web, location based services and other internet delivered services over mobile systems or smart environments (e.g., GPS wayfinding services.

9. WORKPLACE INFORMATION AND COMMUNICATION ACCESSIBILITY

It is important to ensure that the Information and Communication Accessibility Standard’s regime for accessible information and communication fully applies to access to information and communication by employees, needed for effective and meaningful participation in employment. The final proposed Employment Accessibility Standard does not clearly provide for this. It only provides a requirement for accessibility of a very narrow class of employment-related information. It states:

“Accessible information and communications

Organizations shall have the means (either internally or externally) to deliver accessible formats and other related communication supports and services for the following employment-related information upon request:

Essential duties of vacant jobs;
Employment opportunity information;
Job advertisement or posting;
Application forms;”
Job testing materials to qualified and selected applicants;
Job interview to qualified and selected applicants;
Job offer to those selected for offer;
Individual accommodation plans;
Employee orientation materials;
Performance management processes;
Career development and advancement opportunities;
Return to work procedure;
Redeployment procedure;
Separation or termination information; and
Emergency and safety information.

Notes:

1. This requirement applies where these materials are used by the organization, including where required by this standard.

2. EA-SDC recommends that compliance timelines for this Clause align with the IC-SDC final proposed standard.”

In contrast, the final proposed Information and Communication Accessibility Standard does not clearly and comprehensively address accessibility of employment-related information and communication. It appears that the final proposed Information and Communication Accessibility Standard delegates the job of setting standards in this area to the Employment Accessibility Standard. The final proposed Information and Communication Accessibility Standard states:

“*Comment 12

The intent is for organizations to have accessible websites in the future.

On May 31, 2010, responding to the Charles Beer Independent Review on the AODA which the Government was then making public, the Minister of Community and Social Services committed in the Legislature to harmonize the forthcoming accessibility standards. The Beer Report recommended this harmonization. This Government commitment includes the Employment Accessibility Standard and the Information and Communication Accessibility Standard. To effectively harmonize these, the Government must ensure that the right of access to information that the Information and Communication Accessibility Standard establishes must fully apply to the employment setting.

We therefore recommend that

15. This standard be clarified to ensure that its regime for access to information and communication fully applies to access by employees with disabilities to workplace information and communication needed in connection with their employment duties.

As a good illustration of this, it is very important that workplace intranet sites ensure that information posted on them, intended for employees, is provided in a format that is accessible for people with disabilities. It is not clear whether the final proposed Information and Communication Accessibility Standard will cover all workplace intranet sites, or whether it will simply cover accessibility of information on public internet sites. The same accessibility needs apply whether the site is on an intranet or on the internet. Especially for larger organizations, with many employees, there is no reason why the organization couldn’t or shouldn’t meet the same accessibility requirements for both their intranet and internet sites at or near the same time.

It is our understanding that while the Ontario Government has worked to make its internet sites accessible to fulfil the Ontarians with Disabilities Act 2001, it has not undertaken a comparable effort to make sure its large system of intranet sites for Ontario public servants are similarly accessible. This was wasteful and entirely unjustified.

We therefore recommend that:

16. The standard be expanded to specifically and fully extend its website accessibility requirements to intranet sites. Time lines and detailed requirements might be scaled back for smaller organizations with fewer employees.

10. POLICY ON ACCESSIBILITY OF INFORMATION AND COMMUNICATION

It is helpful for the final proposed Information and Communication Accessibility Standard to require each organization to develop a policy on providing accessible information and communication for persons with disabilities. However, the final proposed standard’s provision on this is very weak. It states:

“3.1 Policies

Organizations shall include in their written policies:

how they will deal with requests for information and communications in alternate formats;
how they will deal with requests for communication supports and services;
how their procurement policies will address accessibility; and
the criteria that will be used to determine what information and communications will be made available in plain language.”

This leaves it to an organization to adopt any policy it wishes, no matter how weak and ineffective. Enforcement of this requirement won’t be very useful or practical. As long as an organization can point to a piece of paper that says something about these four requirements, no matter how little, the organization will be in full compliance. The Ontario Liberal Party widely condemned as utterly inadequate, comparable provisions for weak annual accessibility plans in the Ontarians with Disabilities Act 2001.

We therefore recommend that:

17. Section 3 of the standard be amended to:

a) set minimum enforceable requirements for an organization’s information and communication accessibility policy, to ensure that these policies are strong and effective and not mere window-dressing. For example, they should include policies that ensure there is accessible information and communication, that information technology that is procured is accessible, and that the organization puts in place an effective means for persons with disabilities to seek accessible information and communication.

b) Require that public sector organizations and large private sector organizations, and potentially some other private sector organizations excluding the smallest businesses, make these policies available to the public, e.g. on their web site, electronically file these policies with the Ontario Government so that compliance can be easily tracked and enforced.

11. NOTIFYING THE PUBLIC OF ACCESSIBLE INFORMATION/ COMMUNICATION OPPORTUNITIES

We commend the final proposed standard for including a measure to promote an organization’s informing the public about the availability of accessible information and communication. The standard states the following in section 3:

“Organizations shall notify members of the public about the availability of accessible information and communications using a variety of measures to reach persons with disabilities.”

Again, it would be very helpful for the standard to include more detail on what is required. It is also fully appropriate to impose broader requirements on large organizations that have extensive interactions with the public.

We therefore recommend that:

18. Section 3 be amended to set more specific and enforceable requirements for how to notify the public about avenues for accessible information and communication. These requirements can be greater for larger organizations that deal more extensively with the public.

12. SELF-GOVERNING PROFESSIONS

We endorse the standard where it states:

“The Committee also intends to create systemic change by creating early awareness through requirements for members of regulated professions such as healthcare professionals and lawyers, as well as professionals involved in the design, production or delivery of information and communication products.”

It later states:

“4.2 For Members of Regulated Professions

Organizations identified in Schedule 3 of this standard shall ensure that mandatory professional development includes training on:

the information and communication needs of persons with disabilities;
the prevention, identification and removal of barriers to accessible information and communications;
resources, tools, and communication supports for providing accessible information and communication supports; and
accessible alternate information and communications formats and communication supports and services.

Comment 10
This clause requires licensing and regulatory bodies to train their professionals on how to meet the information and communication needs of persons with disabilities.

The Committee’s intent is to ensure that regulated professionals in Ontario, many of whom provide key services, are trained on accessibility issues. This could be accomplished through cost-effective on-line methods.

The requirement was previously situated under the section on education which may have given rise to the incorrect assumption that the requirement was for a formal course for credit which would be costly and would pose a mobility barrier for out-of-province professionals who may wish to practice in Ontario.”

We endorse this recommendation. We emphasize that this should be legislated and should be mandatory. Absent this, voluntary compliance by self-governing professions cannot be assured. Our recent presentation to a conference of the Ontario Association of Architects revealed to us that too many of those involved in the very profession of designing buildings do not have sufficient knowledge about the accessibility needs and rights of persons with disabilities who will use those buildings.

We do not support the concern in the preceding passage about barriers to mobility of out-of-province professionals who wish to practice in Ontario. If those professionals wish to qualify to practice in Ontario they should be expected to have the same minimum knowledge and training on information and communication accessibility that is to be required of those professionals licensed in Ontario.

The Ontario Government has had ample opportunity to try voluntary measures to address this issue of training for self-governing professionals. We re-emphasize our submissions in our January 22, 2009 brief on the initial proposed Information and Communication Accessibility Standard, as follows:

“14. ACKNOWLEDGING IMPORTANCE OF INCREASED ACTION BY PROFESSIONAL, REGULATORY AND LICENSING BODIES.

We endorse the proposed ICAS’s requirement that professional licensing bodies provide training on information and communication accessibility needs of persons with disabilities. This direction in the ICAS is consonant with the McGuinty Government’s as-yet unfulfilled 2007 election pledge regarding disability accessibility issues, which the AODA Alliance spearheaded. In his September 14, 2007 letter to the AODA Alliance, Premier McGuinty said in part:

“Institute a new program to ensure that students in schools and professional organizations are trained on accessibility issues.

We already include awareness of and respect for students with special needs: in every curriculum document there is a front piece on planning programs for students with special education needs. Disability awareness is an expectation in the Grade 12 Social Sciences and Humanities course. Our government also introduced character education.

Character education is about schools reinforcing values shared by the school community – values such as respect, honesty, responsibility and fairness. It is about nurturing universal values, upon which schools and communities can agree. We will ensure that this curriculum includes issues relating to persons with disabilities.

The Government of Ontario does not set the training curriculum for professional bodies such as architects, but we commit to raising this issue with the different professional bodies.”

We do not know what steps the Ontario Government has taken to keep these education-related commitments.

We offer one illustration of a pressing need in this area. The initial proposed ICAS wisely identifies lawyers as a critical service for persons with disabilities. Despite some stellar examples among the legal profession of doing extraordinary work for persons with disabilities, the legal profession unfortunately has a documented history of too-often insufficiently meeting the legal needs of persons with disabilities.

As a commendable effort to help redress this, for over a decade in the 1990s and early 21st century, the licensing body for lawyers, the Law Society of Upper Canada provided a half-day of disability accessibility training to all law students taking the mandatory Bar Admissions Course. This was a precursor to being admitted to the practice of law in Ontario. This was a very well-received programme. Regrettably, in this decade, the Law Society eliminated that part of the Bar Admissions Course. That was an unwarranted step backward. A committee of the bench, bar and government recently recommended that programmes like the Bar Admissions Course include training on disability issues relating to access to courts. We commend any effort to that end. See: http://www.ontariocourts.on.ca/en/accessiblecourts.htm”

We can add that since our January 22, 2009 brief, we have asked what steps the Ontario Government has taken to keep that 2007 election pledge. The answers received indicate no action on this issue whatsoever concerning training of self-governing professions. See: http://www.www.aodaalliance.org/whats-new/newsub2011/aoda-alliance-writes-three-cabinet-ministers-to-learn-what-the-ontario-government-has-done-to-keep-premiers-2007-election-pledge-on-teaching-school-students-and-professional-trainees-about-d/

Section 32(3)(f) of the Accessibility for Ontarians with Disabilities Act 2005 provides that the Accessibility Directorate may “(f) consult with organizations, including schools, school boards, colleges, universities, trade or occupational associations and self-governing professions, on the provision of information and training respecting accessibility within such organizations;” we have asked the Ontario Government whether and to what extent the Accessibility Directorate has taken action since 2005 under that provision, and if so, what results have been achieved. Any responses received identify no action taken or results achieved. Our predecessor, the ODA Committee, had pressed for the AODA to be strengthened when it was before the Legislature in 2005, to impose stronger requirements than this vis à vis training of professionals.

We are also concerned that according to the Ministry’s published analysis of the final proposed Information and Communication Accessibility Standard, the final proposed standard has dropped the proposal of a requirement of training in this areas as a requirement for entry into that profession. The Ministry’s comparison of the initial proposed standard and the final proposed standard states:

“training as an “entry into practice” requirement for regulated professionals dropped;”

We strongly disagree with dropping that requirement. The point of entry to a profession can be a most important point for influencing proper practices in this area.

Our concerns are buttressed by the findings in the Report of the Government-appointed Charles Beer Independent Review of the AODA. That Report found a pressing need for expanded public education on accessibility. It found: “It is critical that the government build a broader public awareness and understanding about the AODA and that the necessary tools and supports be available for the obligated sectors.”

We therefore recommend that:

19. Regarding self-governing professionals:

a) The standard should at a minimum include the mandatory accessibility requirements for self-governing professionals set out in the initial proposed Information and Communication Accessibility Standard.

b) That requirement should be expanded to include requirements for training in this area as a precondition to entry to a licensed self-governing profession, and

c) This issue should not be left to voluntary compliance by self-governing professions, nor to non-legislative efforts by the Ontario Government at persuading self-governing professions to take voluntary action.

13. ACCESSIBILITY TRAINING OF INFORMATION TECHNOLOGY SPECIALISTS

We commend the standard for attempting to address training of those in the information technology field on information and communication accessibility needs. However, it is important to ensure that the standard fully and effectively covers training for anyone studying to work in the field of information and communication technology to include disability accessibility needs. These individuals are not typically regulated as part of a self-governing profession, and may hold no licence or professional designation under law. It will be necessary to develop a broader, creative strategy for achieving this goal.

We commend the standard for attempting to address this. The final proposed standard provides:

“7.2.4 Developers of information and communication resources

Organizations that provide training or education on the design, production or delivery of information and communication products shall provide training to recipients in:

the information and communication needs of persons with disabilities;
the prevention, identification and removal of barriers to accessible information and communications;
inclusive design principles, resources, and tools; and
the testing of information and communication products against the accessibility needs of persons with disabilities.

Comment 18

The intent of this clause is to have organizations that train students on the design, production or delivery of information and communications (e.g., software applications, web applications and sites, computer hardware, marketing and public relations content, etc.) educate their students on how to produce accessible information and communications. This requirement is intended for organizations where training or education is their core business function.

The Committee’s intent is to build awareness and create systemic change through this requirement.”

Although it is not certain, there is some possibility that the final proposed Information and Communication Accessibility Standard may provide persons with disabilities with narrower protections in this important area than did the initial proposed Information and Communication Accessibility Standard. The initial proposed standard stated:

“6.4 Developers of information and communication resources

Organizations, public, private and not for profit, that provide training or education on the design, production, and/or delivery of information and communication products (such as software applications, web applications and sites, computer hardware, marketing and public relations content etc.) shall provide training to recipients in:

information and communication barriers and requirements of persons with disabilities;
inclusive design principles, resources, and tools, and
testing of information and communication products to ensure they meet the accessibility needs of persons with disabilities.”

We want to ensure that the final proposed standard fully includes education on the design, production and delivery of all information and communication services and processes, in addition to products. It should be clear that this applies to both secondary and post secondary institutions. For example, when learning to do computer programming, students should learn to program accessibly. When learning how to create metadata for online libraries, students should learn how to include accessible metadata.

We therefore recommend that:

20. Section 7.2.4 be expanded to

a) include the full scope of coverage in this area that would have been covered by s. 6.4 of the initial proposed Information and Communication Accessibility Standard, and

b) include, for example, ensuring that it covers accessibility training for not just those who design information and communication products, but those who are learning about the design or creation of data or programming.

14. ACCESSIBLE MEETINGS

Some of the final proposed Information and Communication Accessibility Standard’s provisions may directly or indirectly help to ensure that meetings are accessible for persons with disabilities, be they meetings within a workplace or public meetings. The essence of any meeting is the exchange of information and communication.

It would be helpful to clarify in the standard that there are specific accessibility requirements for access to information and communication at such meetings.

We would suggest that any such requirements should take into account the principles for accessible information provision generally described in our January 22, 2009 brief on the initial proposed Information and Communication Accessibility Standard. As well, they should take into account the size and resources of the organization providing the meeting, the extent to which such a meeting is open to the broader public, the ability of persons with disabilities to request information accessibility supports in advance, and the importance of the meeting. An example of a public meeting with obvious and pressing public importance is an all-candidates debate during an election. We regret that when Bill 231 was before the Legislature in the spring of 2010, aimed at modernizing Ontario elections, the Government used its majority to defeat an amendment that would have imposed accessibility requirements on all-candidates debates. For events surrounding our efforts to strengthen Bill 231, visit: http://www.www.aodaalliance.org/category/whats-new/

While we offer these general criteria, we repeat here our desire that the standard should make it easy for an organization to know what they need to do to comply with it. It should also make it easy for persons with disabilities to know to what they are entitled under it for any particular public meeting.

Evolving technology provides new, effective and inexpensive ways to help ensure that meetings are more accessible. For example, one company offers a service to ensure that on-line web meetings are accessible. See: http://www.accessibleevent.com

We therefore recommend that:

21. The standard be expanded to specify and clarify organizations’ obligations for providing accessible information supports for meetings, taking into account such criteria as the importance of the meeting, the extent to which the meeting is open to the public, the organization’s capacity to provide such supports, and the ease with which persons with disabilities can request such supports in advance.

15. SPECIFIC MEASURES TARGETED AT THE ONTARIO GOVERNMENT

The final proposed standard includes no specific measures targeted at the Ontario Government. Similarly it does not appear to impose effective requirements on processes for procurement of information systems by the Ontario Government or by other broader public sector organizations such as municipalities, school boards, or public transit authorities. Our January 22, 2009 brief on the initial proposed Information and Communication Accessibility Standard had recommended that this standard needs such specific provisions.

All the final proposed standard appears to require on point is that an organization have a policy that says how their procurement policies will address accessibility. That is ostensibly toothless. It states:

“3.1 Policies

Organizations shall include in their written policies:

how they will deal with requests for information and communications in alternate formats;
how they will deal with requests for communication supports and services;
how their procurement policies will address accessibility; and
the criteria that will be used to determine what information and communications will be made available in plain language.”

This is a tremendous deficiency. Our January 22, 2009 brief summarized its detailed analysis of this issue as follows:

“8. ICAS MUST INCLUDE STRONG ADDED REQUIREMENTS FOR UNIVERSAL DESIGN IN INFORMATION AND COMMUNICATION FOR ONTARIO GOVERNMENT AND OTHER VERY LARGE PUBLIC SECTOR ORGANIZATIONS.

For governments and very large public sector entities, it will be very important for the ICAS to include strong additional provisions for ensuring that these organizations take into account the accessible information and communication needs of people with disabilities, when they design and operate their information and communication systems, policies and practices, including the acquisition of information technology. We do not propose the same “internal procedural” requirements for the business sector at this stage. Of course, it is important for business organizations to take into account the needs of people with disabilities, when designing their information and communication systems. However, recent experience, particularly with the Ontario Government, shows a particularly pressing need for these added measures now, as here suggested for large public sector organizations. When the ICAS is reviewed by the Standards Development Committee within five years, it may consider similar measures for some private sector organizations, if insufficient progress is achieved in the private sector by then.

We so recommend because the public sector is especially in need of this added action. Since 2001, specific legislation addressing these needs has been on the books that targets the Ontario Government and the broader public sector. Yet in the ensuing seven years, there has been insufficient progress, as this brief’s two introductory examples pointedly illustrate.

Fully four years before passage of the Accessibility for Ontarians with Disabilities Act 2005, the Ontarians with Disabilities Act 2001 imposed clear, specific legal duties to take concrete action to provide certain government and public sector information in an accessible format to persons with disabilities, whether or not the information and communication is tied to employment and the provision of goods, services or facilities. These provisions reiterate requirements that the Charter of Rights and Ontario Human Rights Code have imposed on governments at all levels since 1982. The Ontarians with Disabilities Act 2001 includes the following:

Government goods and services

5. In deciding to purchase goods or services through the procurement process for the use of itself, its employees or the public, the Government of Ontario shall have regard to the accessibility for persons with disabilities to the goods or services.

Government internet sites

6. The Government of Ontario shall provide its internet sites in a format that is accessible to persons with disabilities, unless it is not technically feasible to do so.

Government publications

7. Within a reasonable time after receiving a request by or on behalf of a person with disabilities, the Government of Ontario shall make an Ontario Government publication available in a format that is accessible to the person, unless it is not technically feasible to do so.

Government employees

8. (1) The Government of Ontario shall accommodate the accessibility needs of its employees in accordance with the Human Rights Code to the extent that the needs relate to their employment.

Applicants for employment

(2) The Government of Ontario shall accommodate the accessibility needs of persons with disabilities who apply for a position as a government employee and whom the Government invites to participate in the selection process for employment to the extent that the needs relate to the selection process.

Training

(3) The Government of Ontario shall ensure that its employees who have managerial or supervisory functions receive training in fulfilling the Government’s obligations under this section.

Information

(4) The Government of Ontario shall inform its employees of the rights and obligations of the Government and its employees under this section…”

And later:

“Municipal goods and services

13. In deciding to purchase goods or services through the procurement process for the use of itself, its employees or the public, the council of every municipality shall have regard to the accessibility for persons with disabilities to the goods or services.

As well, the Ontarians with Disabilities Act 2001 has required all broader public sector organizations, including each Ontario Government ministry, to make public an annual accessibility plan. Among other things, these could identify information and communication barriers in these organizations, and the steps these organizations planned to take to remove and prevent such barriers.

The Ontario Government and the broader public sector have thus had more than enough time, to bring themselves into compliance and to provide persons with disabilities with timely accessible information and communication. Despite these clear provisions having been on the books for some seven years the Ontario Government, as one stunning example, is still far from fully compliant with its own law. For example, the Ontario Government has purchased inaccessible communication technology. It too often circulates PDF-formatted documents (that present accessibility problems for persons with print disabilities, such as those with vision loss or dyslexia), as the two examples at the start of this brief exemplify. Too many public servants still don’t even know this presents accessibility barriers for persons with disabilities.

The Ontario Government doesn’t have a fast, centralized capacity to produce public documents in alternative formats such as Braille in a timely fashion on request, despite the requirements of s. 6 of the Ontarians with Disabilities Act 2001. A person asking for a printed government document in Braille can experience a real run-around in trying to get this request fulfilled.

Yet for years, the Ontario Government has been in an extraordinary position to be able to make a huge difference in this area. It has unique spending power to influence the shape of new information technology infrastructure across Ontario that is disability-accessible. It could blaze a trail that others can follow in the private and public sectors, building universal design principles into the way it acquires designs and implements information technology. It can pilot new customer service technologies which, once proven successful, the private and broader public sectors could adopt. None of this requires significant added expenditure.

The Ontario Government is also the largest service-provider and employer in Ontario. As such, it is best positioned to make information and communication accessibility a reality in the lives of many persons with disabilities.

Moreover, via infrastructure funding, the Ontario Government annually spends hundreds of millions of dollars financing activities at the municipal, broader public sector and private sector levels and elsewhere. It is uniquely positioned to easily use the power of the purse to ensure that taxpayers’ dollars are never used to create new barriers that impede persons with disabilities.

Finally, only the Ontario Government has been subject to a specific piece of legislation, beyond the Human Rights Code, which has imposed clear accessibility requirements regarding information and communication accessibility for three-quarters of a decade. Yet it still unjustifiably lags far behind its potential.

Accordingly, the ICAS needs to include tough, detailed new, detailed requirements that will govern how the Ontario Public Service and large public sector organizations in Ontario use public money: to acquire, design, and implement new information and communication technology and systems. These should ensure that universal design principles are implemented right from Day One and that any recipient of public funding does the same when spending taxpayers’ dollars. Measures taken to date on this score haven’t done the job. There needs to be real consequences for public servants who depart from these requirements.”

And later:

“17. STRONG NEW REQUIREMENTS NEEDED FOR THE ONTARIO GOVERNMENT AND LARGE PUBLIC SECTOR ORGANIZATIONS.

Based on the foregoing discussion, we conclude that since 2001, the Ontario Government and the broader public sector have not made anywhere near sufficient progress towards fully-accessible information and communication. Instead of leading by example, a need for more effective, concerted effort has been shown.

This need not involve significant cost. It requires new, significant leadership and imagination. There are examples of good progress in the Ontario Public Service that should be emulated and built upon. However, there has been much more potential for progress than actual progress.

This shows that the way the Ontario Public Service has handled this issue to date has been inadequate. We have similar concerns regarding other large public sector organizations which have had obligations in this context under the Ontarians with Disabilities Act 2001.

Accordingly, we recommend that the ICAS be amended to include added requirements, targeted at the Ontario Government and large broader public sector organizations, requiring:

a) Integration of inclusive design into their IT systems procurement, review and updating procedures. When planning new information and communication systems or services, or when planning the updating of existing information and communication systems or services, proposals should address the accessibility of the systems, and the impact of any changes on accessibility, of the system’s information or user interfaces for persons with disabilities as customers or employees. This should require them to do more than merely “taking into account” the need of persons with disabilities. For example, in the Ontario Government no new IT system should be acquired unless a deputy minister signs off: that the system has been designed to ensure that employees and customers with disabilities can make full and equal use of the system’s user interface and information output; that users with disabilities have been consulted in the project design; that no reasonable alternative exists or could be procured that provides better accessibility; and that the system’s acquisition or upgrade is consistent with the AODA’s requirement that full accessibility be achieved by or before 2025. The deputy minister of the ministry providing any such grant or transfer, should be required to certify to the Secretary of Cabinet that no provincial funds will be disbursed to create any new barriers to equal access to information and communication for persons with disabilities.

b) No Ontario Government or municipal government funding grant or transfer to any organization shall be made that pertains, directly or indirectly, to the acquisition or upgrade of information technology by any recipient organization, unless the grant specifies that the IT acquired will comply with the go-forward accessibility requirements of the ICAS, and that inclusive design principles were used in the selection of the IT to be acquired or upgraded. The deputy minister of the ministry providing any such grant or transfer shall certify to the Secretary of Cabinet that no provincial funds will be disbursed to create any new barriers to equal access to information and communication for persons with disabilities.”

We now re-submit those specific recommendations. Nothing in the final proposed Information and Communication Accessibility Standard or the commentary accompanying it disproves the need for these special measures.

For example, as far as we can tell, the final proposed standard includes no requirements regarding government procurement activities as they affect accessibility of information and communication. This remains a serious concern since, as far as we have been able to ascertain, the Ontario Government still has no comprehensive, systematic and enforceable policy or practices in place to ensure that newly procured systems, services or facilities are disability-accessible. There remains a real and serious risk that the Ontario Government will continue to invest substantial amounts of public funds in new information technology systems, such as new health records systems, without ensuring that they are accessible.

Procurement activities within the Ontario Government generally do not necessarily take into account disability accessibility needs. The Government now has in place no comprehensive, monitored policy and process for ensuring that Ontario taxpayer dollars are not used, e.g. through the procurement of goods and services, to create or perpetuate barriers against persons with disabilities.

In 2009, we offered the Ontario Government a constructive proposal on how to comprehensively address the issue of ensuring that Ontario tax dollars are not used to create or perpetuate any barriers against persons with disabilities, through its procurement or infrastructure spending. See our June 25, 2009 letter to the Ministry of Energy and Infrastructure, available at: http://www.www.aodaalliance.org/whats-new/newsub2011/is-the-ontario-government-ensuring-that-no-tax-dollars-are-used-to-create-barriers-against-people-with-disabilities/

The inadequate Government response to our proposal, offered months later, is available at:
http://www.www.aodaalliance.org/whats-new/newsub2011/ontario-government-inadequately-responds-to-aoda-alliance-proposals-to-ensure-public-funds-not-used-to-create-or-perpetuate-barriers-against-ontarians-with-disabilities/

Ontario should not lag behind other jurisdictions in this area. Various states in the U.S. have disability accessibility procurement requirements, as are charted as of 2008 at:
http://accessibility.gtri.gatech.edu/sitid/stateLawAtGlance.php

If this issue is not fully and properly addressed in the Information and Communication Accessibility Standard, there is a very serious risk that substantial public funds will continue to be unwisely spent on procuring inaccessible information systems. We will keep losing the great potential of using the public spending power to create a major economic incentive for private sector organizations to design and market fully-accessible information systems. Ontario should use its spending leverage to promote more accessibility at no added cost to the taxpayer.

The Government’s and public sector’s spending power can amplify this economic incentive if, for example, it includes in any research grants or contract, mandatory conditions requiring the grantee to submit barrier-free reports, and requiring that any information systems that the grantee is to purchase must be fully accessible information systems. Again, this costs the public nothing, and can yield substantial results.

Once again, the Charles beer Report on the Independent Review of the AODA buttresses our approach. It recommended that the accessibility requirements for the Ontario Government in the Ontarians with Disabilities Act 2001 not be repealed until they are sufficiently replaced either in accessibility standards or in amendments to the AODA itself. The Report states:

“3. ODA Requirements on Provincial Ministries

The ODA sets out specific obligations for provincial ministries that may not be captured by the AODA standards. I therefore recommend that in its gap analysis the government carefully review sections 4 to 9 of the ODA to ensure that these specific requirements are sufficiently incorporated in the standards. Based on that analysis, consideration should be given to amending the AODA to include any provisions omitted.”

Moreover, the Charles Beer Independent Review of the AODA found that there is a need for the Ontario Government to develop an overall concerted provincial policy on accessibility, not just in the area of information and communication, but more generally.

We therefore recommend that:

22. The standard be amended to include added, enforceable requirements, targeted at the Ontario Government and large broader public sector organizations, to go into effect promptly, that require:

a) Integration of inclusive design into their IT systems procurement, review and updating procedures. When planning new information and communication systems or services, or when planning the updating of existing information and communication systems or services, proposals should ensure the accessibility of the systems, and the impact of any changes on accessibility, of the system’s information or user interfaces for persons with disabilities as customers or employees. This should require them to do more than merely “take into account” the need of persons with disabilities. For example, in the Ontario Government no new IT system should be acquired unless a deputy minister signs off: that the system has been designed to ensure: that employees and customers with disabilities can make full and equal use of the system’s user interface and information output; that users with disabilities have been consulted in the project design; that no reasonable alternative exists or could be procured that provides better accessibility; and that the system’s acquisition or upgrade is consistent with the AODA’s requirement of full accessibility by or before 2025. The deputy minister of the ministry providing any such grant or transfer, should be required to certify to the Secretary of Cabinet that no provincial funds will be disbursed to create any new barriers to equal access to information and communication for persons with disabilities.

b) No Ontario Government or municipal government funding grant or transfer to any organization shall be made that pertains, directly or indirectly, to the acquisition or upgrade of information technology by any recipient organization, unless the grant specifies that the IT acquired will comply with the go-forward accessibility requirements of the ICAS, and that inclusive design principles were used in the selection of the IT to be acquired or upgraded. In the case of spending by the Ontario Government, the deputy minister of the ministry providing any such grant or transfer shall certify to the Secretary of Cabinet that no provincial funds will be disbursed to create any new barriers to equal access to information and communication for persons with disabilities.

c) The inclusion in any Ontario Government or broader sector organization’s research grants or contracts of a condition requiring fully-accessible formats for their reports, and where information systems are to be acquired, the acquisition by the grant or contract, where feasible, of fully accessible information systems.

d) Information-content authoring tools and applications (including content management systems and software development kits) that the Ontario Government procures be required to produce WCAG 2.0 Level AA content and support the authors in doing so (or follow the W3C Authoring Tool Accessibility Guidelines – ATAG).

16. ELECTIONS

We strongly commend the Information and Communication Standards Development Committee for trying to address information and communication barriers in provincial elections. The final proposed standard states:

“7.6 Elections

7.6.1 Political parties
Political parties in provincial elections shall provide accessible election and candidate materials and hold at least one all-candidates meeting where persons with disabilities can:

participate in the discussion during the meeting; and
pose questions to candidates and receive answers to questions.

7.6.2 Voting
Elections Ontario shall implement secure voting methods to allow persons with disabilities to vote privately and independently.

Comment 20

These clauses address access to provincial elections and signal how important this issue is for persons with disabilities so they can participate in the democratic process.

Based on public review feedback, the Committee has removed the requirement for individual candidates as it may not be feasible.”

We are concerned that this does not address all the barriers to information and communication in provincial elections. As well, it does not address municipal elections at all. Municipal elections fall within provincial jurisdiction. The same barriers confront persons with disabilities in both provincial and municipal elections.

The AODA Alliance and its predecessor, the ODA Committee, have been in the forefront in campaigning for fully accessible elections in Ontario. For example, in the 2007 election we won from each of Ontario’s major political parties a pledge to develop an accessible elections action plan. For our recent efforts to try to get this pledge fulfilled, visit e.g.: http://www.www.aodaalliance.org/whats-new/newsub2011/aoda-alliance-presents-brief-on-barriers-to-voting-to-legislatures-select-committee-on-elections-select-committee-report-acknowledges-need-for-solutions/

On December 8, 2009, the Ontario Government introduced Bill 231 into the Ontario Legislature for First Reading. It proposed to amend Ontario elections legislation to, among other things, make elections accessible to voters with disabilities. As finally enacted in the spring of 2010, and despite vigorous advocacy by the disability community, that legislation does not incorporate all the recommendations of the information and communication Standards Development Committee in the final proposed Information and Communication Accessibility Standard. The AODA Alliance had called on the Ontario Government to significantly strengthen Bill 231. See e.g.
http://www.www.aodaalliance.org/whats-new/newsub2011/aoda-alliance-calls-on-all-parties-to-strengthen-bill-231-to-prevent-more-inaccessible-elections-in-ontario/

We therefore recommend that:

23. The standard be amended to fully address all information and communication barriers in both provincial and municipal elections, with time lines that ensure that the next municipal and provincial elections in Ontario will be fully free of information and communication barriers. We repeat here our recommendations in our brief to the Ontario Legislature’s Standing Committee on the Legislative Assembly on Bill 231, available at:
http://www.www.aodaalliance.org/whats-new/newsub2011/please-endorse-the-aoda-alliance-brief-on-strengthening-bill-231-to-ensure-fully-accessible-elections-for-voters-and-candidates-with-disabilities/

17. ELECTRONIC KIOSKS

We are very concerned that the final proposed Information and Communication Accessibility Standard does not address barriers to the use of electronic kiosks in a manner that is sufficiently specific, clear and comprehensive. Public and private sector organizations are increasingly setting up public electronic kiosks to enable members of the public to reserve or buy tickets or products, to learn about available products or services, to validate tickets, to interact with the Government or to engage in other transactions. For example, some public transit authorities provide electronic kiosks for buying tickets/paying fares. Some also use them for validating tickets on public transit vehicles, or for checking the amount of funds remaining on one’s “smart card”. Some theatres provide kiosks for buying movie tickets. Stores increasingly provide such kiosks to check out and pay for products, do price or inventory checks, etc.

This technology is now spreading. It will spread even more in the next years. Unless the Information and Communication Accessibility Standard now requires accessibility of this technology to persons with disabilities, there is a real and predictable risk that that this technology will not be designed to be accessible.

For example, too often this technology is designed with “touch screen” interfaces. These can be inoperable by persons with various disabilities such as vision loss, unless accessibility features are built into the kiosk. The Apple Corporation has proven through its new iPhone and iPod Touch that it is possible to incorporate a good deal of accessibility into its touch screen products for users with vision loss, with no added charge to the customer.

It is critical for the Information and Communication Accessibility Standard to now require full accessibility of this technology, so that those who invest in such new technology now and in the future will take the cost-saving measure in advance of ensuring that accessibility is built into that technology.

It is easy to achieve a major “win” in this context. Much of the electronic kiosk technology that we will be using in the next five to ten years has not yet been purchased, or even designed. These electronic kiosks are often custom-built to meet a specific organization’s needs. If the organization makes sure that accessibility needs are part of their purchase request, the companies that design and build these electronic kiosks can fill the bill.

The adaptive technology needed for accommodating persons with disabilities in electronic kiosks already widely exists and is not expensive to incorporate in the design of electronic kiosks. For example, IBM provides guidelines on making touch screen technology disability-accessible. See:
http://www-03.ibm.com/able/guidelines/hardware/hwtouchscreen.html

Moreover, IBM Canada advises us that the U.S. Post Office kiosks were built here in Ontario. Thus, the technology not only exists, but exists here in Canada. IBM advised us that it is in the business of producing electronic kiosks and that it can make them disability-accessible. Thus, the standard we seek promises to bring potential new business to Ontario. We have no reason to believe that IBM is the only supplier of this technology that can construct it to be accessible.

Information on requirements to make electronic kiosks disability-accommodation is readily available on the internet with a simple Google search. See e.g. http://www.e-accessibilitytoolkit.org/toolkit/technology_areas/electronic_kiosks
and http://www.onestoptoolkit.org/electronic.cfm

This is also easy to achieve since most if not all of the organizations that will acquire and use this technology are either large business enterprises or governments (e.g. public transit authorities) There is no reason why such organizations should now spend their funds on designing and installing inaccessible electronic kiosks.

To design accessibility into this technology in advance would be low-cost and high-yield. To require its accessibility in a standard that goes into effect now is to head off a serious future problem of inaccessibility before it is created.

There are good “success stories” available where organizations have done this. Some banks now include good accessibility features in their automatic teller machines.

The accessibility features needed in electronic kiosks also have the benefit that they will increase the ease with which people without disabilities can use these kiosks. Anyone who has used an electronic kiosk has likely seen others struggling to figure out how to use them. Such added features as audio instructions, options to slow down the time within which one must key in a response, large print display options etc., will be welcomed by many users, even those who don’t need these due to a disability.

We offer an excellent illustration of why it is so important to enact this requirement in the Information and Communication Accessibility Standard now, and not wait five years for that standard to be reviewed. On November 30, 2009, CBC Radio 1 in Toronto aired an interview with a senior official with Metrolinx, an Ontario Government agency that seeks to coordinate public transit services in and around the Greater Toronto Area. Metrolinx announced that it was test-piloting new “smart card” technology that would let transit passengers use the same fare card on various public transit services around and in Toronto. This system would reportedly include an electronic kiosk system for paying one’s fare with the smart card.

In the CBC Radio interview, the Metrolinx official projected that this entire new system would be up and running within five years. Unless the Information and Communication Accessibility Standard now mandates the accessibility requirements that must be included, it will be too late for Metrolinx. Five years from now, when the Information and Communication Accessibility Standard is reviewed, Metrolinx’s electronic kiosk system will already have been installed at public expense. Any effort to then require added accessibility features to it via the Information and Communication Accessibility Standard would likely be met with push-back that such retrofits are too costly.

Our initial contact with the Government officials involved in the design and deployment of this new technology revealed that it was in fact not fully accessible. There is no excuse for this use of public funds. Those involved in its development have told us that they will monitor developments under the AODA. If the Information and Communication Accessibility Standard does not require accessible electronic kiosks to be accessible, organizations such as these will simply conclude that they need not worry about accessibility of electronic kiosks to ensure accessible information and communication. That would be very counterproductive.

An organization that spends its money on designing and installing electronic kiosks that are not fully accessible to persons with disabilities would have an extremely time trying to justify this creation of new barriers, if challenged under the Human Rights Code before the Ontario Human Rights Tribunal. It is no defence for them to argue that they didn’t think of it at the time. There have been case settlements against major retail companies in the U.S. addressing accessibility of such technology. See e.g. the settlements with Target and CVS Stores in Appendix 3 and with Staples and Dollar General Stores in Appendix 4.

This is not a hypothetical issue. For example, we have received anecdotal feedback about some public transit authorities’ electronic ticket purchase or validation equipment that is not fully accessible to passengers with disabilities.

Under the AODA, Ontario has set its goal of being a world leader in accessibility. By comparison, a bill has been introduced into the U.S. Congress entitled the ‘Technology Bill of Rights for the Blind Act 2010 (HR 4533). See: http://www.opencongress.org:80/bill/111-h4533/text

It would provide for setting federal regulatory accessibility standards for consumer electronics. Moreover, the U.S. has proven that this is an area that is properly amenable to accommodation standards. Regulatory standards have been enacted in the U.S. for some electronic kiosk providers under s. 508 of the Rehabilitation Act.

We acknowledge that Appendix B to the final proposed Information and Communication Accessibility Standard includes some options for such technology. However, as noted earlier in this brief, Appendix B is not clearly mandatory and hence, is substantially insufficient. It is vital that the standard be written to clearly identify electronic kiosks as requiring specific, detailed accessibility features. Organizations shouldn’t need lawyers and technical advisors to ferret out that this standard imposes requirements on that technology. We fear that unless one is sifting for requirements in this area, one may not see specifics in this standard applicable to electronic kiosks.

We recognize that technology, including access technology, is evolving. It may well be sufficient for the Information and Communication Accessibility Standard to specify what end-user functionality must be included, while leaving reasonable flexibility in the choice of technology to achieve it. The test for compliance should be whether users with disabilities can fully and independently use the electronic kiosks.

We therefore recommend that:

24. The standard be amended to clearly and specifically set out detailed accessibility requirements for electronic kiosks, that an organization provides for the public for such activities as checking out at a retail establishment, purchasing and/or validating tickets, exploring available goods and services, checking one’s balance on a smart card or adding funds to it, making reservations, or engaging in any other transactions. The standard should impose end-user functional accessibility requirements and set strict time lines so that it applies, at a minimum, to any new installations, replacements, or modifications to such technology. It should at a minimum address the recurring needs of users with vision, hearing or speech loss, with motor limitations, with learning or intellectual disabilities, or other disabilities that such technology can accommodate.

18. ELIMINATING PRICE DISCRIMINATION ARISING FROM WEBSITE AND KIOSK INACCESSIBILITY

Some organizations may charge an extra fee for customers who purchase goods or services directly with a human representative of the organization (e.g. over the phone), rather than via a website or electronic kiosk interface. This discriminates against those who, because of disability, cannot use their website.

It is important to remove any such barriers. Any organization which imposes such a surcharge should make an exception for customers with disabilities who are unable to use a website or kiosk interface. Such a surcharge waiver should be widely advertised, e.g. over any voicemail announcement system that the organization provides.

We therefore recommend that:

25. The standard be expanded to require that:

a) NO organization may impose a surcharge on the purchase of goods or services via the telephone or direct purchase from a representative of that organization on site, as opposed to via a website or electronic kiosk interface, on any customer who, because of disability, cannot use that website or electronic kiosk, and

b) any organization that has such a surcharge should widely advertise a waiver of the surcharge that is easily and automatically available for customers who self identify as having a disability which prevents them from using the website or electronic kiosk.

19. ACCESSIBLE SIGNAGE

It is very important that the standard cover accessibility needs in public signage. It is our understanding that the final proposed Information and Communication Accessibility Standard does not cover this. It is not sufficient to leave this for the Built Environment Accessibility Standard. That standard may not be able to cover all situations where an organization displays signage that is available for the public.

Signage requirements can include choice of font, size of font, color contrast, and available lighting, for the benefit of persons with limited vision.

We therefore recommend that:

26. The standard be expanded to include detailed requirements for signage available to the public, whether indoor or outdoor, including sufficient standards for choice of font, font size, color contrast, and available lighting.

20. PUBLIC LIBRARIES

We commend the standard for addressing the acquisition and provision by public libraries of accessible information. This regime would be enhanced if the Ontario Government, via this standard, could facilitate the bulk purchase of books and other materials for libraries across Ontario. If publishers are approached for bulk purchases, which include a condition that alternate format materials also be provided, publishers are more likely to be responsive to meeting this aggregate demand. This would be even more effective if it also included an avenue for facilitating such bulk purchases by schools, universities and colleges, and their libraries.

We therefore recommend that:

27. The standard be amended to provide for a central means, facilitated by the Ontario Government, for public libraries, schools, universities and colleges to make bulk purchase orders for books and other information resources from publishers on condition that alternate format or accessible versions also be included of all materials sold, so as to increase the economic incentive for publishers to meet this demand.

21. ACCESSIBLE COURT DOCUMENTS

We endorse the recommendation that court documents be made available in accessible formats. It states:

“7.4 Legal / Justice
Organizations producing information and communications such as, but not limited to, court proceedings and related documents including notices, subpoenas, affidavits and court orders shall make these accessible upon request.”

The need for this is highlighted in the 2007 Weiler Report, entitled “Making Ontario’s Courts Fully Accessible to Persons with Disabilities.” It is available at http://www.ontariocourts.on.ca/en/accessiblecourts.htm

Ensuring that the Information and Communication Accessibility Standard covers this is reinforced by that report, whose recommendations we support.

We therefore recommend that:

28. The standard should include guarantees for access to court-related documents as proposed in the 2007 Report of the Weiler Committee, entitled “Making Ontario’s Courts Fully Accessible to Persons with Disabilities.”

22. USER INSTRUCTIONS AND MANUALS FOR PRODUCTS SOLD IN ONTARIO

Many consumer products sold in Ontario come with instructions or manuals. They may be included as print documents in the box with the product. They may also be provided as an electronic file available on line. As consumer products such as consumer electronics get more and more complicated, access to these instructions becomes increasingly important for the user.

With too rare exceptions, these instructions are not available in an accessible alternate format. Too often, when the instructions are available on line, they are posted in inaccessible PDF format.

It is important for such instructions to be available in an accessible format on request. At the very least, having them posted in an accessible format on line such as HTML or MS Word, would significantly improve things, at no cost to the manufacturer.

We therefore recommend that:

29. The standard be expanded to require that instructions for consumer products, sold in Ontario be made available on request in an accessible alternate format, such as an accessible downloadable file on line.

23. DESIGNATING A PERSON IN CHARGE OF INFORMATION AND COMMUNICATION ACCESSIBILITY IN LARGE ORGANIZATIONS

To make the standard work, it would be very helpful in large organizations (over 100 employees) for the organization to designate one of its employees as having lead responsibility for ensuring accessibility of information and communication. This need not be a fulltime job, nor need it be a new hire. It is our experience that where there is one person in charge this makes it more likely that results will be achieved and that a person with a disability can quickly resolve access issues.

We therefore recommend that:

30. The standard be expanded to require that In large organizations, a person among existing staff be designated as having lead responsibility for ensuring accessible information and communication.

APPENDIX 1 – RECOMMENDATIONS IN THIS BRIEF

The Information and Communication Accessibility Standard that the Government adopts should fully implement the principles and recommendations set out in the AODA Alliance’s January 22, 2009 brief on the initial proposed Information and Communication Accessibility Standard.
The standard state that its purpose is that on or before 2025, all necessary information and methods of communication to and from an individual in connection with the provision of goods, services, facilities or employment in Ontario will be designed to be fully accessible to persons with disabilities consistent with human rights law and inclusive design principles.
The standard be amended to provide a guarantee of an equal opportunity to review, respond or use the information and communications considering the urgency of the situation.
The definition of classes of organizations be amended so that it is not governed solely by the number of employees in an organization. The number of an organization’s employees could be used as a key criterion for those parts of the Information and Communication Accessibility Standard that address duties of an organization as employer towards its employees.
The time lines in the standard, and especially as relate to web content, should be reduced.
Any time lines set in this standard should:
1. Include monitorable and enforceable interim benchmark requirements, where the time line is more than 2 years after the standard goes into effect;
2. Take into account the fact that all organizations have been under a duty to provide accessible information and communication since 1982 under the Human Rights Code;
3. In the case of the Ontario Government, should take into account the fact that the Ontario Government has already been under an obligation to make available to the public accessible websites, accessible government documents on request, and the like since 2002 pursuant to the Ontarians with Disabilities Act 2001.
4. In the case of any public or private sector organization, take into account the fact that where longer time-lines are imposed, this can create unnecessary and avoidable costs for that organization.
The standard should be amended to set a date by which the Ontario Government will make publicly available free web authoring tools and other resources to help reduce the cost to other organizations to comply with the standard, and the time they will need for compliance.
Any time lines in the standard should not delay required work by any organization on the basis that the Ontario Government must first fulfill its obligations before other organizations need work on removing and preventing their own barriers.
Wherever a commentary, accompanying a section of the standard, provides more protection for the rights of persons with disabilities than does the wording of the final proposed standard itself, the standard that is enacted should implement the commentary, and not the narrower wording of the final proposed standard.
The standard be revised to make its requirements and related time lines very clear and easy to understand without needing a lawyer to explain it.
Appendix A and Appendix B be amended to ensure that their specifics are mandatory, and not merely a “guide.”
The standard be amended to require web content to meet W3C Web Content Accessibility Guidelines 2.0 (WCAG 2.0), level AA, and not only the inferior Level A.
The standard be amended to make it clear that as of a date soon after the standard’s enactment, all new content posted on a website should be posted in an accessible way, whether the website is a new website or a pre-existing one.
The standard’s web accessibility requirements should be expanded to include Mobile Web, location based services and other internet delivered services over mobile systems or smart environments (e.g., GPS wayfinding services.
This standard be clarified to ensure that its regime for access to information and communication fully applies to access by employees with disabilities to workplace information and communication needed in connection with their employment duties.
The standard be expanded to specifically and fully extend its website accessibility requirements to intranet sites. Time lines and detailed requirements might be scaled back for smaller organizations with fewer employees.
Section 3 of the standard be amended to:
1. set minimum enforceable requirements for an organization’s information and communication accessibility policy, to ensure that these policies are strong and effective and not mere window-dressing. For example, they should include policies that ensure there is accessible information and communication, that information technology that is procured is accessible, and that the organization puts in place an effective means for persons with disabilities to seek accessible information and communication.
2. Require that public sector organizations and large private sector organizations, and potentially some other private sector organizations excluding the smallest businesses, make these policies available to the public, e.g. on their web site, electronically file these policies with the Ontario Government so that compliance can be easily tracked and enforced.
Section 3 be amended to set more specific and enforceable requirements for how to notify the public about avenues for accessible information and communication. These requirements can be greater for larger organizations that deal more extensively with the public.
Regarding self-governing professionals:
1. The standard should at a minimum include the mandatory accessibility requirements for self-governing professionals set out in the initial proposed Information and Communication Accessibility Standard.
2. That requirement should be expanded to include requirements for training in this area as a precondition to entry to a licensed self-governing profession, and
3. This issue should not be left to voluntary compliance by self-governing professions, nor to non-legislative efforts by the Ontario Government at persuading self-governing professions to take voluntary action.
Section 7.2.4 be expanded to
1. include the full scope of coverage in this area that would have been covered by s. 6.4 of the initial proposed Information and Communication Accessibility Standard, and
2. include, for example, ensuring that it covers accessibility training for not just those who design information and communication products, but those who are learning about the design or creation of data or programming.
The standard be expanded to specify and clarify organizations’ obligations for providing accessible information supports for meetings, taking into account such criteria as the importance of the meeting, the extent to which the meeting is open to the public, the organization’s capacity to provide such supports, and the ease with which persons with disabilities can request such supports in advance.
The standard be amended to include added, enforceable requirements, targeted at the Ontario Government and large broader public sector organizations, to go into effect promptly, that require:
1. Integration of inclusive design into their IT systems procurement, review and updating procedures. When planning new information and communication systems or services, or when planning the updating of existing information and communication systems or services, proposals should ensure the accessibility of the systems, and the impact of any changes on accessibility, of the system’s information or user interfaces for persons with disabilities as customers or employees. This should require them to do more than merely “take into account” the need of persons with disabilities. For example, in the Ontario Government no new IT system should be acquired unless a deputy minister signs off: that the system has been designed to ensure: that employees and customers with disabilities can make full and equal use of the system’s user interface and information output; that users with disabilities have been consulted in the project design; that no reasonable alternative exists or could be procured that provides better accessibility; and that the system’s acquisition or upgrade is consistent with the AODA’s requirement of full accessibility by or before 2025. The deputy minister of the ministry providing any such grant or transfer, should be required to certify to the Secretary of Cabinet that no provincial funds will be disbursed to create any new barriers to equal access to information and communication for persons with disabilities.
2. No Ontario Government or municipal government funding grant or transfer to any organization shall be made that pertains, directly or indirectly, to the acquisition or upgrade of information technology by any recipient organization, unless the grant specifies that the IT acquired will comply with the go-forward accessibility requirements of the ICAS, and that inclusive design principles were used in the selection of the IT to be acquired or upgraded. In the case of spending by the Ontario Government, the deputy minister of the ministry providing any such grant or transfer shall certify to the Secretary of Cabinet that no provincial funds will be disbursed to create any new barriers to equal access to information and communication for persons with disabilities.
3. The inclusion in any Ontario Government or broader sector organization’s research grants or contracts of a condition requiring fully-accessible formats for their reports, and where information systems are to be acquired, the acquisition by the grant or contract, where feasible, of fully accessible information systems.
4. Information-content authoring tools and applications (including content management systems and software development kits) that the Ontario Government procures be required to produce WCAG 2.0 Level AA content and support the authors in doing so (or follow the W3C Authoring Tool Accessibility Guidelines – ATAG).
The standard be amended to fully address all information and communication barriers in both provincial and municipal elections, with time lines that ensure that the next municipal and provincial elections in Ontario will be fully free of information and communication barriers. We repeat here our recommendations in our brief to the Ontario Legislature’s Standing Committee on the Legislative Assembly on Bill 231, available at: http://www.www.aodaalliance.org/whats-new/newsub2011/please-endorse-the-aoda-alliance-brief-on-strengthening-bill-231-to-ensure-fully-accessible-elections-for-voters-and-candidates-with-disabilities/
The standard be amended to clearly and specifically set out detailed accessibility requirements for electronic kiosks, that an organization provides for the public for such activities as checking out at a retail establishment, purchasing and/or validating tickets, exploring available goods and services, checking one’s balance on a smart card or adding funds to it, making reservations, or engaging in any other transactions. The standard should impose end-user functional accessibility requirements and set strict time lines so that it applies, at a minimum, to any new installations, replacements, or modifications to such technology. It should at a minimum address the recurring needs of users with vision, hearing or speech loss, with motor limitations, with learning or intellectual disabilities, or other disabilities that such technology can accommodate.
The standard be expanded to require that:
1. NO organization may impose a surcharge on the purchase of goods or services via the telephone or direct purchase from a representative of that organization on site, as opposed to via a website or electronic kiosk interface, on any customer who, because of disability, cannot use that website or electronic kiosk, and
2. any organization that has such a surcharge should widely advertise a waiver of the surcharge that is easily and automatically available for customers who self identify as having a disability which prevents them from using the website or electronic kiosk.
The standard be expanded to include detailed requirements for signage available to the public, whether indoor or outdoor, including sufficient standards for choice of font, font size, color contrast, and available lighting.
The standard be amended to provide for a central means, facilitated by the Ontario Government, for public libraries, schools, universities and colleges to make bulk purchase orders for books and other information resources from publishers on condition that alternate format or accessible versions also be included of all materials sold, so as to increase the economic incentive for publishers to meet this demand.
The standard should include guarantees for access to court-related documents as proposed in the 2007 Report of the Weiler Committee, entitled “Making Ontario’s Courts Fully Accessible to Persons with Disabilities.”
The standard be expanded to require that instructions for consumer products, sold in Ontario be made available on request in an accessible alternate format, such as an accessible downloadable file on line.
The standard be expanded to require that In large organizations, a person among existing staff be designated as having lead responsibility for ensuring accessible information and communication.

APPENDIX 2 – SUMMARY OF INCREMENTAL REQUIREMENTS UNDER WCAG 2.0 ACCESSIBILITY REQUIREMENTS LEVEL AA BEYOND THOSE IN LEVEL A (EXCLUDING REAL TIME CAPTIONING AND AUDIO DESCRIPTION)

The following summarizes the differences in website accessibility requirements between WCAG 2.0 Level A and Level AA apart from video description and captioning requirements.

1.4.3 Contrast (Minimum)
1. WCAG 2.0 Level AA says:
The visual presentation of text and images of text has a contrast ratio of at least 4.5:1, except for the following:
Large Text: Large-scale text and images of large-scale text have a contrast ratio of at least 3:1;
Incidental: Text or images of text that are part of an inactive user interface component, that are pure decoration, that are not visible to anyone, or that are part of a picture that contains significant other visual content, have no contrast requirement.
Logotypes: Text that is part of a logo or brand name has no minimum contrast requirement.

What this means in English:
Text is hard to read if its colour and darkness is similar to the background. Ensure that the text is sufficiently different in colour and darkness from the background. This does not apply to logos.

Difference it makes:
Increases the legibility of text for people who do not see all colours or who have reduced visual acuity. The contrast ratios also work for individuals who see no colour, and for the many older people who have reduced visual acuity.

Requirements:
There is no cost or extra work when done from the beginning. For most existing sites, it means that the Webmaster needs to edit text in a stylesheet.

Added benefit to others:
Makes text easier to read for everyone.

1.4.4 Resize text
2. WCAG 2.0 Level AA says:
Except for captions and images of text, text can be resized without assistive technology up to 200 percent without loss of content or functionality.

What this means in English:
When visitors to a site double the font size, they can still read and interact with pages.

Difference it makes:
Significant improvement for people with even minor vision impairments. This ensures that the text does not degrade or become less legible when it is made bigger.

Requirements:
There is no extra cost or work when done from the start. It requires choosing fonts that can be scaled, i.e., they can be made larger and smaller. Scalable fonts look better as well.

Added benefit to others:
Provides flexibility when displaying in different contexts, e.g., group presentations, small or large monitors, handheld web-enabled devices, viewing from a distance, etc.

1.4.5 Images of Text
3. WCAG 2.0 Level AA says:
If the technologies being used can achieve the visual presentation, text is used to convey information rather than images of text except for the following:
Customizable: The image of text can be visually customized to the user’s requirements;
Essential: A particular presentation of text is essential to the information being conveyed.
Note: Logotypes (text that is part of a logo or brand name) are considered essential.

What this means in English:
As much as possible, use text rather than images of text. It is OK to use images if text cannot be formatted to achieve an effect, or if browsers cannot display an effect.

Difference it makes:
For people who are blind: Text can always be read using a screen reader or Braille display.

For people with low-vision: Text is easier to read.

For anyone who has difficulty finding and navigating to information, text can be located using the search function.

Requirements:
No extra cost or work if done from the start.

Added benefit to others:
Text can be searched, resized, copied, and edited easily.

2.4.5 Multiple Ways
4. WCAG 2.0 Level AA says:
More than one way is available to locate a Web page within a set of Web pages except where the Web Page is the result of, or a step in, a process.

What this means in English:
Provide at least two ways to find information on a Web site: a sitemap, navigation links, breadcrumbs, search function, and so on.

Difference it makes:
Easier to navigate to and around a site. This makes it more efficient to get around for people who use alternative input devices and easier to find information for someone using alternative displays (e.g., screen readers).

Requirements:
Navigation schemes such as breadcrumbs, site maps, navigation bars, and so on, are very easy to implement when creating a new site. Most authoring tools have the capability to include different site navigation strategies.

Added benefit to others:
The ability to easily navigate around a website and find content benefits all users.

2.4.6 Headings and Labels
5. WCAG 2.0 Level AA says:
Headings and labels describe topic or purpose.

What this means in English:
Clear and descriptive headings and labels help users understand what information is present and how it is organized. For example, on a form, the field for entering a family name should be labeled “Surname” or “Last name,” not “Name 2.”

Difference it makes:
Enables someone using a screen reader or Braille display to get an overview of a document by navigating through it, without having to read it all.

Requirements:
No additional cost or work.

Added benefit to others
Using headers and labels can reveal problems with how information is organized. Correcting these problems makes it easier for everybody to use a website.

2.4.7 Focus Visible
6. WCAG 2.0 Level AA says:
Any keyboard operable user interface has a mode of operation where the keyboard focus indicator is visible.

What this means in English:
“Keyboard focus” is the one point within a window that a person can type to, or interact with by pressing keys on the keyboard. By complying with 2.4.7, people who do not use a mouse can immediately tell what they are interacting with on a Web page.

Difference it makes:
Some people have trouble using a mouse. Visible focus indicators are essential for anyone who relies of a keyboard to move through Web pages, complete on-line forms, etc.

Requirements:
Ensuring visible keyboard focus indicators is not onerous. The ability to make keyboard focus indicators visible is built into many content management systems and Web authoring tools.

Added benefit to others:
2.4.7 helps people who use a mouse. The focus indicators can indicate where users should click, where they do not need to click, and what they just clicked.

3.1.2 Language of Parts
7. WCAG 2.0 Level AA says:
The human language of each passage or phrase in the content can be programmatically determined except for proper names, technical terms, words of indeterminate language, and words or phrases that have become part of the vernacular of the immediately surrounding text.

What this means in English:
This checkpoint does not apply to Web pages that are in one language. However, when a page is mostly in one language but contains words in another, 3.1.2 requires that language of these words be specified. For example, if an English page contains a “français” link, the web developer needs to indicate that the word “français” is French.

This is not a requirement for words or phrases that have become part of English, like “savoir-faire” and “rendez-vous.”

Difference it makes:
Someone using a screen reader will hear text in the correct language. It also means that someone with a learning disability will be able to access the correct dictionary to find the meaning of the word.

Requirements:
For languages that are written entirely in a single language, this checkpoint does not even apply. When it does apply, it is trivially simple to mark up words or phrases as different languages. Essentially, no additional work is involved.

Added benefit to others:
Ensures that words that are written in non-Latin alphabets display correctly.

3.2.3 Consistent Navigation
8. WCAG 2.0 Level AA says:
Navigational mechanisms that are repeated on multiple Web pages within a set of Web pages occur in the same relative order each time they are repeated, unless a change is initiated by the user.

What this means in English:
When designing a Web site, keep controls that are repeated on every page in the same order. The Web site is easier to navigate when visitors can predict the location of repeated controls.

Difference it makes:
Reduces confusion and makes it possible to move through pages without adjustment or reorientation. This is especially important for alternative input users who may have to adjust the cursor multiple times to hit the navigation button.

Requirements:
This is just good design.

Web developers who create large and complex sites often use templates. Consistent navigation can be built into the templates, which means that the developer only needs to do this once per site.

Added benefit to others:
It is annoying and confusing when not done. For example, an online slide presentation where the “Next” button changes position every slide is difficult to access.

3.2.4 Consistent Identification
9. WCAG 2.0 Level AA says:
Components that have the same functionality within a set of Web pages are identified consistently.

What this means in English:
Be consistent. For example:

* A site has “Search” on some pages and “Find” on others. Both do the same thing. To comply with 3.2.4, choose either “Find” or “Search,” and use it everywhere.

* An on-line journal includes four links at the top and bottom of every page of every article: “Go to Page 1,” “Previous Page,” “Next Page,” and “Go to last Page.”

* On an e-commerce site, every product appears in this form: Product type – Author – Short description:
“CD – Beatles – Rubber Soul.”
“Book – Margaret Laurence – The Stone Angel.”
“Game – Parker Brothers – Monopoly.”

Difference it makes:
This reduces confusion, and enables someone who can’t scan text visually to search for repeated terms.

Requirements:
This is just good design.

Added benefit to others:
This makes it easier for everyone.

3.3.3 Error Suggestion
10. WCAG 2.0 Level AA says:
If an input error is automatically detected and suggestions for correction are known, then the suggestions are provided to the user, unless it would jeopardize the security or purpose of the content.

What this means in English:
For on-line forms, suggest how to fix problems when a visitor inputs incorrect information. Level A only requires that errors be identified. To conform to 3.3.3, the errors must be identified, and suggestions provided on how to correct them.

Difference it makes:
This helps everyone, but especially people with cognitive disabilities, people who are unfamiliar with on-line forms or applications, and people who use screen readers and other alternative displays.

Requirements:
This requirement is supported by most software development kits.

Added benefit to others:
Good for anyone.

3.3.4 Error Prevention (Legal, Financial, Data)
11. WCAG 2.0 Level AA says:
For Web pages that cause legal commitments or financial transactions for the user to occur, that modify or delete user-controllable data in data storage systems, or that submit user test responses, at least one of the following is true:
Reversible: Submissions are reversible.
Checked: Data entered by the user is checked for input errors and the user is provided an opportunity to correct them.
Confirmed: A mechanism is available for reviewing, confirming, and correcting information before finalizing the submission.

What this means in English:
For Web sites that allow people to make financial transactions, establish legal commitments, update data, or take tests, help users avoid the consequences of their mistakes. Give users a second chance if they accidentally input the wrong information or activate the wrong control.

Difference it makes:
Prevents errors, mistaken transactions, submission of inaccurate information, etc. This is critical for anyone with cognitive disabilities, and people who have trouble with typing, pointing and clicking.

Requirements:
This type of function is supported by most software development kits and is good practice.

Added benefit to others:
Good for anyone.

NOTE: The exclusion from this list of captioning and audio description is not meant to imply that there is any reduced need for those accessibility measures, nor to suggest that the AODA Alliance does not seek their inclusion in the Information and Communication Accessibility Standard.

APPENDIX 3 – LEGAL CASE SETTLEMENTS ON WEBSITE ACCESSIBILITY ISSUES

Case settlements and decisions dealing with website accessibility issues include the following:

2009 – Settlement with Major League Baseball requiring All Major League Baseball Team websites to Work towards WCAG 2.0 Level A and Level A.A. Requirements as set out in the settlement agreement set out below.

2009 – September – HSBC – Settlement with New York Attorney General requiring conformance Level AA WCAG 2.0 (See text of settlement below.)

2009 – April – Staples – Settlement with American Council of the Blind, American Foundation for the Blind, Bay State Council of the Blind, California Council of the Blind – Compliance with Priority One or Two checkpoints of WCAG Guidelines. Copy of settlement set out below. Note; WCAG 2.0 were then still under development. This agreement gave Staples the option to employ WCAG 2.0 and if used, it committed to Level AA.

2009 – Settlement with CVS Drug Store Chain requiring website accessibility ranging from WCAG 1.0 to 2.0 including possibly Level A and Level AA. See settlement agreement below.

2008 – September – iTunes – Settlement with Massachusetts Attorney General and NFB – Apple agrees to provide “full and equal access.”

2008 – August – Target Corp. – Settlement with National Federation of the Blind – NFB will certify the Target website through its Non-Visual Accessibility Web Certification program – $6 Million claims fund

2007 – May – Radio Shack – Settlement with American Council of the Blind, American Foundation for the Blind, California Council of the Blind – Compliance with Priority One or Two checkpoints of WCAG 1.0 Guidelines

2004 – August – Ramada.com and Priceline.com – Settlement with New York A.G. – Agreed to implement a variety of accessibility standards (compliance to a collection of requirements from the Section 508 standards and WCAG 1.0 level 1 and 2 guidelines).

2000 – August – Sydney Olympics – Decision by Australian Human Rights and Equal Opportunity Commission under the Disability Discrimination Act, requiring:

1. A declaration that the respondent has engaged in conduct that is unlawful under section 24 of the DDA in that it has provided for the use of the complainant a web site which because of his blindness is to a significant extent inaccessible.

2. A declaration that the respondent do all that is necessary to render its web site accessible to the complainant by 15 September 2000 by:

(i) including ALT text on all images and image map links on its web site;

(ii) providing access to the Index of Sports from the Schedule page; and

(iii) providing access to the Results Tables to be used on the web site during the Sydney Olympic Games.

HSBC CASE SETTLEMENT TERMS

WHEREAS, pursuant to the provisions of Section 63(12) of the New York Executive Law, Andrew M. Cuomo, Attorney General of the State of New York, has conducted an investigation into the policies, procedures, and practices of HSBC Card Services, Inc. (“HSBC Card Services” or “HSBC”) with respect to the provision of services to individuals with vision impairments and individuals who are deaf or hard of hearing;

WHEREAS, HSBC services general purpose and private label credit cards issued by its affiliates;

WHEREAS, the Attorney General conducted an investigation based on allegations that HSBC Card Services representatives repeatedly denied the request of a blind HSBC MasterCard holder to make a reasonable modification to HSBC’s policies to allow her to dispute a charge on her credit card statement;

WHEREAS, New York State and federal law prohibit places of public accommodation from discriminating against persons on the basis of disability, and require businesses to ensure that persons with disabilities are not excluded or denied services due to the absence of auxiliary aids and services, unless the provision of such aids and services would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would cause an undue burden;

WHEREAS, New York State Law Executive Law § 63(12) prohibits repeated or persistent fraudulent or illegal acts in the transaction of business;

WHEREAS, the parties herein desire to obviate further investigation or potential litigation, and it is expressly understood, with respect to the investigation of the OAG, that this is a compromise settlement entered into solely for the purposes of avoiding the expense and inconvenience of further investigation and in lieu of commencing a judicial proceeding pursuant to Executive Law § 63(12);

IT NOW APPEARING THAT HSBC Card Services desires to settle and resolve the investigation without admitting or denying the OAG’s findings, the OAG and HSBC Card Services, in consideration of the covenants and understandings set forth herein and intending to be legally bound thereby, hereby enter into this Assurance of Discontinuance pursuant to Executive Law § 63(1 S) and agree as follows:

PART ONE: DEFINITIONS

1.1 “Accommodation Request” or “Request” means a request for Auxiliary Aids and Services and/or for modifications to policies, practices, and procedures to accommodate the needs of Customers with vision or hearing impairments.

1.2 “Americans with Disabilities Act” means the Americans with Disabilities Act of 1990, 42 U.S.c. §§ 12101, et seq., and the Title III implementing regulations, 28 C.F.R., Part 36.

1.3 “And” and “or” shall be construed conjunctively or disjunctively as necessary to make the meaning inclusive rather than exclusive.

1.4 “Assurance” means this Assurance of Discontinuance.

I.S “Auxiliary Aids and Services” shall include all of the examples set forth in 28 C.F.R. § 36.303(b).

1.6 “Customer” means any person residing in the United States who has a general purpose or private label credit card serviced by HSBC Card Services, or contacts HSBC Card Services about acquiring a general purpose or private label credit card serviced by HSBC Card Services.

1.7 “Customer Service Employee” means any employee, agent, independent contractor or representative of HSBC Card Services whose responsibilities include regularly interacting with Customers by telephone and/or in – person in connection with servicing a general purpose or private label credit card.

1.8 “Effective Date” means the date this Assurance is executed by the parties hereto.

1.9 “HSBC Card Services Website” means www.hsbccreditcard.com. and any successor website operated by HSBC Card Services in the event that www.hsbccreditcard.comis decommissioned or HSBC Card Services decides to operate another website for servicing general purpose or private label credit cards.

1.10 “Including” means without limitation.

1.11 The use of the singular form of any word includes the plural and vice versa.

PART TWO: INVESTIGATION AND FINDINGS

2.1 In 2008, the GAG conducted an undercover investigation after receiving a complaint from a blind HSBC MasterCard holder alleging she had been unable to dispute a charge on her credit card statement because HSBC Card Services representatives repeatedly insisted that she must complete a standardized form to dispute the charge. The complainant was unable to read or complete the form due to her disability.

2.2 The GAG conducted undercover calls and reviewed relevant policies, procedures, and other documents produced by HSBC Card Services pursuant to subpoena.

2.3 Based on its investigation, the GAG found that:

a. HSBC Card Services does not offer sufficient Auxiliary Aids and Services to ensure that Customers with vision impairments have full and equal access to HSBC’s services.

b. HSBC Card Services lacks clear, written, uniform policies and procedures relating to the provision of services to, and communication with, Customers with vision or hearing impairments.

c. HSBC Card Services does not provide sufficient training to its staff on how to best communicate with Customers with vision or hearing impairments and how to respond to requests for Auxiliary Aids and Services.

d. HSBC Card Services lacks an adequate quality assurance system to track and monitor the provision of services to, and communication with, Customers with vision or hearing impairments.

e. The HSBC Card Services Website is not fully accessible to Customers with vision impairments.

2.4 Based on its investigation, the GAG concluded that HSBC Card Services’ policies and procedures are insufficient to ensure compliance with New York Executive Law § 296(2) and the Americans with Disabilities Act.

PART THREE: COMPLIANCE WITH THE LAW

3.1 HSBC Card Services shall comply fully with the obligations, tenns, and conditions ofthe Americans with Disabilities Act.

PART FOUR: POLICIES AND PROCEDURES

4.1 HSBC Card Services shall develop and implement written policies and procedures (“Accommodations Policy”) to effectively communicate with, and provide services to,

Customers with vision or hearing impairments. The Accommodations Policy shall include the elements set forth in Paragraphs 4.4 – 4.9, and shall be consistent with the Americans with Disabilities Act. The Accommodations Policy shall apply to all business with Customers in the United States.

4.2 Within 30 days of the Effective Date, HSBC Card Services shall provide the Accommodations Policy to the OAG for its review. The Accommodations Policy shall be subject to the OAG’s approval, which shall not be unreasonably withheld. Upon the OAG’s approval, HSBC Card Services shall adopt and implement the Accommodations Policy.

4.3 The Accommodations Policy shall apply to all divisions, units, portfolios, and personnel of HSBC Card Services. To the extent any pre – existing policies and procedures conflict’ with or contradict the Accommodations Policy, such policies and procedures shall• be rescinded.

4.4 Process to Submit Accommodation Requests. HSBC Card Services shall adopt and implement a reasonable process for the submission of Accommodation Requests. HSBC Card Services shall permit individuals to make Accommodation Requests by telephone or in writing.

4.5 Process to Review and Respond to Accommodation Requests.

a. HSBC Card Services shall adopt and implement a standardized process to review and respond to Accommodation Requests. The Accommodations Policy shall clearly explain: (I) how to process Accommodation Reque~ts, (2) who is authorized to respond to different types of Requests and provide different types of Auxiliary Aids and Services, and (3) when Requests must be forwarded to supervisory or management personnel.

b. HSBC Card Services shall respond to Accommodation Requests promptly, and in no event more than ten business days after the Request is made.

c. HSBC Card Services shall provide Auxiliary Aids and Services when necessary to effectively communicate with, and provide services to, Customers with vision or hearing impairments, unless doing so would result in an undue burden (i.e., significant difficulty or expense). If multiple Auxiliary Aids and Services would be effective, HSBC Card Services may offer the Auxiliary Aid and Service of its choice, provided that there is a process by which Customers can object on the ground that the selected Auxiliary Aid or Service is not effective and such objection will be reviewed and addressed promptly. HSBC Card Services shall consult with the Customer to determine whether the selected Auxiliary Aid or Service will ensure effective communication.

d. HSBC Card Services shall make reader services available to Customers with vision impairments who contact HSBC’s toll – free customer assistance line and request such assistance. HSBC Card Services shall make printed materials, including credit card statements, notices, standardized forms, and informational materials, available on the HSBC Card Services Website in an accessible HTML format. In the event that reader services and accessible on – line HTML versions are not sufficient to effectively communicate printed material to a particular Customer with a vision impairment, HSBC Card Services shall make such printed material available in alternative formats, such as Braille, large – print, audiocassettes, or CDs.

e. HSBC Card Services shall not deny an Accommodation Request without the written approval of management personnel.

f. HSBC Card Services shall not impose any fee or charge for providing Auxiliary Aids and Services.

4.6 Accommodation Request Log.:. HSBC Card Services shall maintain a centralized log (“Accommodation Request Log”), in an electronic format, which reflects the following information for each Accommodation Request:

a. The name and telephone number of the Customer for whom the Accommodation Request was made;

b. If the Accommodation Request was made by someone other than the Customer who has proper authorization to communicate with HSBC Card Services on the Customer’s behalf, the name and telephone number of the requestor;

c. A description of the Accommodation Request;

d. The date the Accommodation Request was made;

e. The name of the employee who addressed the Accommodation Request;

f. Whether HSBC Card Services satisfied the Accommodation Request and, if so, how;

g. The date HSBC Card Services responded to the Accommodation Request and provided the Auxiliary Aid and Service (if applicable);

h. If the Customer objected to the specific Auxiliary Aid and Service provided, a description of the nature of this objection and HSBC Card Services’ response to this objection; and I. If HSBC Card Services denied the Accommodation Request, a description of the basis for this denial and whether any alternative accommodation or Auxiliary Aid or Service was provided.

4.7 TDD/TTY and Relay Service Calls.

a. HSBC Card Services shall maintain well – functioning TODITTY numbers that allow Customers with hearing impairments to access all services generally available by telephone to other Customers.

b. HSBC Card Services shall adopt and implement clear protocols for Customer Service Employees on how to service calls on a TDD/TTY and how to properly respond to calls placed through Telecommunications Relay Services.

c. HSBC Card Services shall adopt and implement a quality assurance program to monitor the extent to which the TOD/TTY numbers function appropriately and the extent to which Customer Service Employees follow the protocols referenced in subparagraph 4.7(b) above. This quality assurance program shall include the placement of test calls.

4.8 Complaint Procedure.

a. HSBC Card Services shall adopt and implement a process for receiving, investigating, and resolving Customer complaints concerning alleged failures to satisfy Accommodation Requests. HSBC Card Services shall permit individuals to submit complaints through the HSBC Card Services Website and by mail or telephone.

b. HSBC Card Services shall investigate all complaints concerning the failure to satisfy Accommodation Requests promptly and thoroughly, and shall effectively communicate the result of the investigation to the complainant within 14 business days of the date the complaint was submitted.

c. In the event that HSBC Card Services determines that an Accommodation Request was inappropriately denied or that the Accommodations Policy has been violated, HSBC Card Services shall promptly take all appropriate remedial actions to ensure that the Request is satisfied.

4.9 ADA Coordinator. HSBC Card Services shall appoint or designate a management employee to serve as the ADA Coordinator. The ADA Coordinator shall be responsible for:

a. Overseeing the implementation of the Accommodations Policy;

b. Overseeing the provision of the training referenced in Part Five;

c. Monitoring compliance with the Accommodations Policy;

d. Receiving, investigating, and resolving complaints concerning the failure to satisfy Accommodation Requests;

e. Periodically reviewing the Accommodation Request Log to ensure that it is maintained in an accurate and appropriate manner; and

f. Recommending improvements to the Accommodations Policy and/or the development of additional Auxiliary Aides and Services, as is appropriate.

PART FIVE: TRAINING

5.1 Within 20 days of the OAG’s approval of the Accommodations Policy, HSBC Card Services shall distribute the Accommodations Policy to all HSBC Card Services employees, along with a written notice that the policy has been adopted pursuant to an agreement with the OAG. All employees hired thereafter shall receive the Accommodations Policy within ten days of their state date.

5.2 Within 90 days of the OAG’s approval of the Accommodations Policy, HSBC Card Services shall develop a training program and train Customer Service Employees on the requirements of the Accommodations Policy. All Customer Services Employees hired thereafter shall receive this training within 60 days of their start date. HSBC Card Services shall maintain records reflecting who received this training.

5.3 On at least an annual basis, HSBC Card Services shall circulate a written memorandum to all Customer Service Employees reminding them of their obligations to comply with the Accommodations Policy and summarizing its contents.

PART SIX: PUBLIC NOTICE

6.1 By September 30, 2009, HSBC Card Services shall post a copy of the notice attached as Exhibit I to this Assurance (“Notice of Accommodations Policy”) in an easily located and fully accessible portion of the HSBC Card Services Website.

6.2 By December 31, 2009, HSBC Card Services shall mail all existing Customers a copy of the Notice of Accommodations Policy. In addition, each calendar year, HSBC Card Services shall include the Notice of Accommodations Policy along with the annual privacy statement sent to each Customer.

6.3 Beginning in February 2010, HSBC Card Services shall include the Notice of Accommodations Policy along with credit cards issued to new Customers.

6.4 The Notice of Accommodations Policy shall be provided in alternative formats to ensure that the information is effectively communicated with Customers with vision impairments.

PART SEVEN: WEBSITE ACCESSIBILITY

7.1 By February 28, 2010, HSBC Card Services shall modify the HSBC Card Services Website so that it conforms with Conformance Level A of the Web Content Accessibility Guidelines 2.0, promulgated by the Web Accessibility Initiative of the World Wide Web Consortium (“WCAG 2.0”). By May 31, 2010, HSBC Card Services shall further modify the HSBC Card Services Website so that it conforms with Conformance Level AA of WCAG 2.0.

7.2 By November 30, 2009, HSBC Card Services shall retain an individual or entity with expertise in the area of website accessibility (“Website Accessibility Consultant”) to evaluate the extent to which the HSBC Card Services Website conforms with WCAG 2.0 and to conduct appropriate usability tests. The selection of the Website Accessibility Consultant shall be subject to the GAG’s approval, which shall not be unreasonably withheld.

7.3 By March 31, 2010, the Website Accessibility Consultant shall prepare and provide to the GAG and HSBC Card Services a written report summarizing the extent to which the HSBC Card Services Website conforms with Conformance Level A of WCAG 2.0. If the Website Accessibility Consultant concludes that the website, or any portion of the website, do not conform with Conformance Level A of WCAG 2.0, the report shall II include recommended corrective actions, which shall be promptly taken by HSBC Card Services.

7.4 By June 30, 2010, the Website Accessibility Consultant shall prepare and provide to the OAG and HSBC Card Services a written report summarizing the extent to which the HSBC Card Services Website conforms with Conformance Level AA of WCAG 2.0. If the Website Accessibility Consultant concludes that the website, or any portion of the website, do not conform with Conformance Level AA of WCAG 2.0, the report shall include recommended corrective actions, which shall be promptly taken by HSBC Card Services.

7.5 On each anniversary date of this Assurance, the Website Accessibility Consultant shall evaluate the extent to which any change or addition made to the HSBC Card Services Website since the last evaluation conforms with Conformance Level AA of WCAG 2.0, and shall prepare and provide to the OAG and HSBC Card Services a written report summarizing the findings. The report shall include any recommended corrective actions, which shall be promptly taken by HSBC Card Services.

7.6 HSBC Card Services shall notify individuals about how they can submit a complaint concerning the accessibility of the website. By September 30, 2009, this notification shall appear in an easily located and fully accessible portion of the HSBC Card Services Website.

PART EIGHT: RECORD – KEEPING

8.1 HSBC Card Services shall maintain the following records for the duration of this Assurance:

a. All documents concerning Accommodation Requests;

b. The Accommodation Request Log;

c. All documents concerning any Customer complaints of alleged failures to satisfy Accommodation Requests;

d. Records identifying Customer Service Employees who received the training pursuant to Paragraph 5.2, and copies of all materials provided at such training; and

e. Invoices and other documents reflecting the usage of the TTY/TOO number(s).

PART NINE: REPORTING AND MONITORING

9.1 HSBC Card Services shall prepare reports and provide them to the GAG within 30 days of the close of each of the five Reporting Periods. The first Reporting Period shall begin 90 days after the Effective Date and end six months thereafter. The remaining Reporting Periods shall begin at the close of the prior Reporting Period and end six months thereafter. The reports shall include:

a. The total number of Accommodation Requests submitted during the Reporting Period, broken down by categories;

b. The total number of Accommodation Requests denied during the Reporting Period, and a written explanation for the basis of each denial and any alternative accommodation offered and/or provided; .

c. A copy of the Accommodation Request Log maintained for the Reporting Period;

d. The total number of calls received through the TTYITOO number(s) for the Reporting Period;

e. A written statement from the ADA Coordinator recommending any improvements to the Accommodations Policy or additional Auxiliary Aides and Services that are needed to improve communication with, or the provision of services to, Customers with vision or hearing impairments; and

f. Copies of all documents concerning any complaints received during the Reporting Period alleging a failure to satisfy an Accommodation Request, including but not limited to documents sufficient to show: (l) the nature of the complaint; (2) the date the complaint was received and the manner in which it was received; (3) the complainant’s name and contact information; (4) the investigation conducted; and (5) any remedial action taken as a result of the investigation.

9.2 Upon reasonable notice from the OAG, HSBC Card Services shall provide the OAG with any documents required to be maintained under this Assurance, and any documents that relate to compliance with this Assurance. This Assurance does not in any way impair or affect the right of the OAG to obtain documents from HSBC Card Services pursuant to a subpoena.

PART TEN: SCOPE OF THE ASSURANCE, JURISDICTION, AND ENFORCEMENT PROVISIONS

10.1 This Assurance will expire three years after the Effective Date, except that the OAG may, in its sole discretion, extend the period upon a good – faith determination that HSBC Card Services has not complied with this Assurance, which non – compliance the OAG will discuss and attempt to resolve with HSBC Card Services before making such determination.

10.2 Notwithstanding any provision of this Assurance to the contrary, the OAG may, in its sole discretion, grant written extensions of time for HSBC Card Services to comply with any provision of this Assurance.

10.3 The signatories to this Assurance warrant and represent that they are duly authorized to execute this Assurance and that they have the authority to take all appropriate action required or permitted to be taken pursuant to the .Assurance to effectuate its terms.

10.4 The parties may seek to enforce this Assurance through administrative or judicial enforcement proceedings, including a civil action in federal or state court, as appropriate, seeking specific performance of the provisions of this Assurance. However, in the event of a dispute among the parties regarding any issue arising hereunder, the parties shall attempt in good faith to resolve the dispute before seeking administrative or judicial intervention. Pursuant to New York Executive Law §63( 15), evidence of a violation of this Assurance will constitute prima facie proof of a violation of the applicable statutes in any civil action or proceeding hereafter commenced by the GAG.

10.5 The failure by the GAG to enforce this entire Assurance or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of the GAG’s right to enforce other deadlines and provisions of this Assurance.

10.6 If any provisions, terms, or clauses of this Assurance are declared illegal, unenforceable, or ineffective in a legal forum, those provisions, terms, and clauses shall be deemed severable, such that all other provisions, terms, and clauses of this Assurance shall remain valid and binding on the parties.

10.7 This Assurance constitutes the entire agreement between HSBC Card Services and the GAG on the matters raised herein, and no other statement, promise or agreement, either written or oral, made by either party or agents of either party that is not contained in this Assurance shall be enforceable.

10.8 Nothing in this Assurance is intended to, nor shall, limit the OAG’s investigatory or compliance review powers otherwise provided by law or this Assurance.

10.9 This Assurance may be executed in multiple counterparts, each of which shall be deemed a duplicate original.

10.10 This Assurance is final and binding on the parties including principals, agents, representatives, successors in interest, assigns, and legal representatives thereof. No assignment by any party hereto shall operate to relieve such party of its obligations herewith.

10.11 HSBC Card Services agrees not to take any action or to make or permit to be made any public statement denying, directly or indirectly, any finding in this Assurance or creating the impression that this Assurance is without factual basis. Nothing in this paragraph affects HSBC Card Services’ (a) testimonial obligations or (b) right to take legal or factual positions in defense of litigation or other legal proceedings to which the Attorney General is not a party.

10.12 All correspondence related to this Assurance shall reference AOD No. 09 – 127.

10.13 All communications and notices regarding this Assurance shall be sent by first class mail and facsimile, twenty – five (25) pages or less in length, to:

Office of the Attorney General Spencer Freedman, Counsel Civil Rights Bureau Office of the New York State Attorney General 120 Broadway, 3rd Floor New York, New York 10271 Tel. (212) 416 – 8250 Fax (212)416 – 8074 HSBC Card Services Julie Davenport General Counsel HSBC Card Services Inc.

26525 N. Riverwoods Boulevard

Mettawa, IL 60045

Tel: (224) 544 – 2964

Fax: (224) 522 – 2964

IN WITNESS THEREOF, the undersigned subscribe their names:

Dated: August 21, 2009

By: Vice President HSBC Card Services, Inc. 1111 N Town Center Drive Las Vegas, Nevada 89144 CONSENTED TO:

ANDREW M. CUOMO

Attorney General of the State of New York

Dated: New York, New York

Alphonso B. David

Jeffrey K. Powell Office of the New York State Attorney General 120 Broadway, 3rd Floor New York, New York 10271 Tel. (212) 416 – 8250 Fax (212) 416 – 8074 Bureau Chief Officer Freedman Counsel for Civil Rights

MLB Accessible Website Agreement

This is the Settlement Agreement between the digital arm of Major League Baseball (MLBAM) and the American Council of the Blind, the Bay State Council of the Blind, and the California Council of the Blind. MLB collaborated with these organizations in the Structured Negotiations process to reach this historic agreement, which addresses the accessibility of not only mlb.com, but also of every baseball club in the major league. Lainey Feingold and Linda Dardarian were the lawyers for the blind organizations in the Structured Negotiations. The Disability Law Center in Boston was also involved in this initiative. Read the press release that was issued about this agreement.

Simplified Summary of this Document

SETTLEMENT AGREEMENT

This Settlement Agreement (“Agreement”) is entered into by and between the following parties: American Council of the Blind (“ACB”), California Council of the Blind (“CCB”), Bay State Council of the Blind (“BSCB”) (collectively, “Claimants”) and MLB Advanced Media, L.P. (“MLBAM”) for the purposes and on the terms specified herein and operates in conjunction with the Confidential Addendum to this Agreement.

RECITALS

This Agreement is based on the following facts:

A. ACB is a non – profit corporation that provides advocacy services in the United States on behalf of individuals who are blind or visually impaired, is dedicated to promoting the full integration of persons who are blind or have visual impairments into all aspects of society, and provides information to the general public about the accomplishments, needs and contributions of persons who are blind or visually impaired. BSCB is ACB’s Massachusetts affiliate serving the needs of blind and visually impaired persons throughout the Commonwealth of Massachusetts. CCB is ACB’s California affiliate serving the needs of blind and visually – impaired persons throughout the State of California. Among ACB’s, BSCB’s and CCB’s board, staff and members, and those on whose behalf they advocate and provide services, are many individuals with visual disabilities who seek to access to www.mlb.com and Club Sites. ACB is incorporated in Washington D.C., and has its place of business in Arlington, Virginia. BSCB is incorporated and has its place of business in the Commonwealth of Massachusetts. CCB is incorporated and has its place of business in the State of California.

B. MLBAM is the Internet and interactive media company of Major League Baseball. MLBAM manages and operates the official league site, www.MLB.com, and each of the official Major League Baseball Club sites (e.g., www.mets.com and www.redsox.com).

C. A dispute has arisen between Claimants and MLBAM concerning whether MLB.com and the Club Sites are and are legally required to be accessible to Persons with Visual Impairments (“Web Accessibility Dispute” or “the Dispute”).

D. On or about July 2, 2008, Claimants notified the MLBAM about the Dispute and offered to engage in Structured Negotiations, in lieu of litigation, to resolve the Dispute. In September 2008, the parties executed a Structured Negotiations Agreement to protect the interests of all parties during those negotiations. Since executing that agreement, the parties have engaged in good faith negotiations and shared relevant information regarding the Dispute. The parties now enter into this Agreement in order to resolve the Dispute and to avoid the burden, expense, and risk of potential litigation. By entering into this Agreement, MLBAM does not admit, and specifically denies, that it is subject to or has violated or failed to comply with any provisions of the ADA, any applicable laws of any state relating to accessibility for persons with disabilities, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable laws, regulations, or legal requirements. Neither this Agreement, nor any of its terms or provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession by MLBAM of any such violation or failure to comply with any applicable law, or that the ADA or any other state law relating to accessibility applies to MLBAM. This Agreement and its terms and provisions, including all Exhibits, shall not be offered or received as evidence for any purpose whatsoever against MLBAM in any action or proceeding, other than a proceeding to enforce the terms of this Agreement and the Confidential Addendum executed herewith.

NOW, THEREFORE, the parties hereby agree to the following provisions:

1. Definitions.

As used in this Agreement, the following terms shall be as defined below:

1.1. All – Star Voting means the system available to the public to select members of the MLB All – Star teams that will play in the annual MLB All – Star game.

1.2. Alternative Audio Stream means non – English radio feeds of select games streamed over the Internet.

1.3. Claimants’ Counsel means Goldstein, Demchak, Baller, Borgen & Dardarian and Law Office of Lainey Feingold, and the attorneys practicing law therein.

1.4. Club Site means the official website of a Major League Baseball team that contains the url www.mlb.com.

1.5. Effective Date means December 31, 2009.

1.6. GameDay Audio means the subscription service, offered by MLBAM that enables subscribers to listen to radio feeds of Major League Baseball games over the Internet streamed via the MLB.com Platform.

1.7. MLB.Com and www.mlb.com mean the official website of Major League Baseball. For purposes of this Agreement, MLB.com does not include shop.mlb.com, auction.mlb.com, forums.mlb.com, clubmlb.com, mlbpaa.mlb.com, mlblogs.com, mlbplayers.com, webpages that MLBAM does not operate or control, or any webpage that does not contain the url mlb.com.

1.8. MLB.com Homepage means the web page at http://mlb.com.

1.9. MLB.com Platform shall mean the MLB.com video and audio players that both: a) originate on MLB.com or a Club Site, and b) MLBAM controls and operates.

1.10. MLB.TV means the subscription service, offered by MLBAM that enables subscribers to watch and listen to telecasts of Major League Baseball games over the Internet streamed via the MLB.com Platform.

1.11. Person or Persons with Visual Impairments means any person who has a physical or mental impairment that substantially limits him or her in the major life activity of seeing.

1.12. Reasonable Efforts means, with respect to a given obligation, the efforts that a reasonable entity in MLBAM’s position would use to perform that obligation. An obligation to use Reasonable Efforts under this Agreement does not require MLBAM to: (a) take any actions that would cause MLBAM to incur an Undue Burden as defined in 28 C.F.R. 36.104 or suffer any other substantial detriment (e.g., compromise the security of any aspect of MLB.com, forego offering a service or product); (b) change or materially affect MLBAM’s overall business strategy; or (c) take any action that would violate any law, order, or contract to which MLBAM is subject.

1.13. WCAG 2.0 means the Web Content Accessibility Guidelines 2.0 promulgated by the Web Accessibility Initiative of the World Wide Web Consortium (W3C).

2. Duration of Agreement.

The terms of this Agreement shall remain in effect for two (2) years from the Effective Date.

3. Accessibility of www.mlb.com and Club Sites.

3.1. Standard for Accessibility.

Except as otherwise provided herein, and pursuant to the time frames specified below, MLBAM will use Reasonable Efforts to ensure that all content on www.mlb.com and all content on the Club Sites satisfy Level A and AA Success Criteria set forth in WCAG 2.0. The Parties recognize that some WCAG 2.0 Level A and AA Success Criteria address features or design elements that may not be used on www.mlb.com or the Club Sites and in such circumstances compliance with those Success Criteria is not required.

3.2. Accessibility Timeline.

3.2.1. July 15, 2009 Accessibility Improvements. No later than July 15, 2009, MLBAM will use Reasonable Efforts to address the following accessibility issues on the major webpages and indices of www.mlb.com and the Club Sites to satisfy the relevant Level A and AA Success Criteria set forth in WCAG 2.0:

3.2.1(i) Lack of page language identification;

3.2.1(ii) Absence of method to bypass repeated blocks of content;

3.2.1(iii) Images with incorrect or no text alternatives;

3.2.1(iv) Headings, lists data tables and paragraphs not identified using HTML code;

3.2.1(v) Color being used as the only visual means of conveying information;

3.2.1(vi) Text and background color combinations providing insufficient contrast for pages other than statistics pages;

3.2.1(vii) Page titles not providing enough information;

3.2.1(viii) Unclear link texts;

3.2.1(ix) Headings and labels that are not descriptive;

3.2.1(x) Keyboard incompatible scripting;

3.2.1(xi) Lack of focus order for form controls;

3.2.1 (xii) Text and background color combinations providing insufficient contrast for statistics pages;

3.2.1(xiii) Programmatically associated labels not provided for controls;

3.2.1(v) Text resizing that causes loss of readability and functionality; and

3.2.1(vi) Links and controls not usable with the Keyboard.

3.2.2. Additional Accessibility Improvements. Except as set forth in Section 3.6, no later than December 31, 2009, MLBAM will use Reasonable Efforts to remediate any additional accessibility issues on www.mlb.com or the Club Sites that are not specified in Sections 3.2.1, so that all content on those sites will satisfy Level A and AA Success Criteria set forth in WCAG 2.0.

3.3. Provisions Regarding GameDay Audio for the 2009 Season.

3.3.1. Subject to Section 3.6 herein, for the 2009 Season, MLBAM will provide a Game Day Audio Player and related Media Center that satisfies Level A and AA Success Criteria set forth in WCAG 2.0 and includes the following features and functionality: volume control, access to home and away audio streams, access to archives, and ability to log – into the player from the Media Center and return to the Media Center. This player shall be referred to as the Accessible GameDay Audio Player. The parties agree that the Game Day Audio Player available at http://mlb.mlb.com/media/player/mpa/index.jsp as of the Effective Date satisfies MLBAM’s obligation under this section.

3.3.2 Alternative Audio Streams. MLBAM will report to Claimants at least monthly during the 2009 season on efforts to make the Alternative Audio Streams available on the Accessible GameDay Audio Player.

3.4. Provisions Regarding MLB GameDay Audio and MLB.TV Subscriptions for Seasons Beginning 2010.

3.4.1. Except as otherwise provided in this Agreement, beginning with the 2010 baseball season, MLBAM will use Reasonable Efforts to ensure that all radio and television streams available to persons who purchase GameDay Audio or MLB.TV subscriptions are delivered in a manner that satisfies Level A and AA Success Criteria set forth in WCAG 2.0.

3.4.2. If MLBAM delivers radio and television streams to the general public by means of a single integrated media player, MLBAM will use Reasonable Efforts to ensure that the single integrated media player, all features and functions of such player, except multiple game viewing options (e.g., Picture – in – Picture options, Mosaic features, etc.), and all purchase paths, login pages, and game link pages (also referred to as Media Centers), satisfy Level A and AA Success Criteria set forth in WCAG 2.0.

3.4.3. If MLBAM delivers radio and television streams to the public by means of multiple media players, MLBAM will use Reasonable Efforts to ensure that the primary player offered to the general public for each type of stream, all features and functions of such players except multiple game viewing options (e.g., Picture – in – Picture options, Mosaic features, etc.), and all purchase paths, login pages, and game link pages (also referred to as Media Centers), satisfy Level A and AA Success Criteria set forth in WCAG 2.0.

3.4.4. If MLBAM concludes that, despite Reasonable Efforts, it cannot meet the requirements of Sections 3.4.1, 3.4.2 or 3.4.3, MLBAM may provide an alternative player or players, purchase paths, login pages, and multiple game link pages for MLB.TV subscribers and GameDay Audio Subscribers, provided that such alternatives satisfy Level A and AA Success Criteria set forth in WCAG 2.0 and are Conforming Alternate Versions within the meaning of WCAG 2.0.

3.4.5. If MLBAM determines that it will provide alternatives pursuant to section 3.4.4, MLBAM shall notify Claimants of its decision in writing at least 15 days prior to Opening Day. The notification shall specify which players, features or functions or purchase paths, login pages and multiple game link pages can and cannot, with Reasonable Efforts, satisfy Level A and AA Success Criteria set forth in WCAG 2.0. Five days after receipt of notification from MLBAM, the Parties shall meet over the telephone regarding the issues raised in the notification for that season. If the Parties do not reach agreement on these issues and cannot mutually agree upon MLBAM’s compliance with Section 3.4.4, the issue shall be submitted to the Dispute Resolution Process set forth in Section 8 of this Agreement.

3.4.6. For the Duration of the Agreement, each season beginning with the 2010 baseball season, MLBAM will make the player(s) and related content designed to meet the requirements of this Section 3.4 of the Agreement available to Claimants for testing purposes at least 5 days before Opening Day. Claimants will provide feedback on the player(s) and related content within two days of the date on which the player(s) are provided for testing. MLBAM shall consider in good faith all feedback provided by Claimants. Two days after Claimants provide their feedback to MLBAM, the Parties shall meet over the telephone regarding the accessibility and usability of the features and functions of the player(s) and related content for the coming season. If the Parties do not reach agreement on these issues and cannot mutually agree upon the accessibility of the features and functions of that season’s player(s) and related content, this issue shall be submitted to the Dispute Resolution Process set forth in Section 8 of this Agreement.

3.5. Provisions Regarding All – Star Voting.

3.5.1. Telephone – Based Voting.

3.5.1.(i) No later than seven days prior to the start of any All – Star Voting during the term of this Agreement, MLBAM will notify Claimants in writing if it plans to offer an automated telephone – based voting method in addition to on – line voting. If a telephone voting method is offered, Claimants will be given an opportunity to test the telephone method within three days of the date that MLBAM provides Claimants with notification. Any telephone – based voting method will be automated, toll – free, available twenty – four hours a day, seven days a week and will allow users to select among the same players for the same positions as any web – based or print method.

3.5.1.(ii) Claimants will provide feedback on the telephone – based voting system within two days of the date on which the system is provided to Claimants for testing. MLBAM shall consider in good faith all feedback provided by Claimants. The Parties shall meet over the telephone regarding the accessibility and usability of the features and functions of the telephone – based All – Star Voting and the manner in which Persons with Visual Impairments shall be notified of the availability of telephone – based voting. If the Parties do not reach agreement on these issues and cannot mutually agree upon the telephone – based voting system within five days of this telephone meeting, this issue shall be submitted to the Dispute Resolution Process set forth in Section 8 of this Agreement.

3.5.2. Web – based Voting. Except as provided herein, prior to the start of any All – Star Voting during the Term of this Agreement, MLBAM will use Reasonable Efforts to ensure that all pages and content of www.mlb.com used for All – Star Voting will satisfy level A and AA Success Criteria set forth in WCAG 2.0. If MLBAM decides to use a visual CAPTCHA as part of All – Star Voting, the provisions of Section 3.7 of this Agreement shall apply unless MLBAM provides for telephone – based voting pursuant to Section 3.5.1. The All Star Ballot will include a link to Accessibility Information page(s) on MLB.com.

3.6. Captions, Transcripts and Audio Description.

During the meetings provided for in Section 6 below, at the request of any Party, the Parties will discuss the issue of captions, transcripts and audio description of content on www.mlb.com and the Club Sites. If the Parties reach agreement on accessibility modifications related to captions, transcripts or audio description on www.mlb.com and Club Sites, that agreement will be memorialized in writing as a further Addendum to the Agreement. In the absence of such an Addendum, this Agreement does not require MLBAM to satisfy WCAG 2.0 Success Criteria under guideline 1.2 that relate to captions, transcripts or audio description of audio or video content posted on www.mlb.com or Club Sites.

3.7. CAPTCHAs.

3.7.1. Except as provided in Section 3.7.2, if any Completely Automated Public Turing Test to Tell Computers and Humans Apart or similar visual or textual Turing or reverse – Turing verification test (referred herein as “CAPTCHA”) is used on www.mlb.com or the Club Sites, MLBAM will use Reasonable Efforts to incorporate alternative security measures that are usable by Persons with Visual Impairments.

3.7.2. Testing of Proposed Alternatives to Visual Verifications. Except as provided in Section 3.5.2 regarding All – Star Voting, if MLBAM plans to include a CAPTCHA on www.mlb.com or the Club Sites after the Effective Date, MLBAM will provide a method for Claimants’ representatives to test the alternative security measure to ensure that it is usable by Persons with Visual Impairments. Such testing will occur as soon as practicable after MLBAM determines that a CAPTCHA will be used, and MLBAM will give good faith consideration to all feedback provided by Claimants’ representatives. Claimants shall provide any feedback within fifteen (15) days of the testing. Any disagreements regarding this feedback shall be submitted to the Dispute Resolution Process set forth in Section 8 of this Agreement.

3.8. On – line Ticket Purchases.

MLBAM will use Reasonable Efforts to ensure that the Purchase Paths for sales of primary – market tickets for Major League Baseball games satisfy Level A and AA Success Criteria set forth in WCAG 2.0. For purposes of this Agreement, a “Purchase Path” shall mean a purchase path that both: a) originates on MLB.com or a Club Site, and b) MLBAM or MLBAM’s subsidiary controls and operates.

4. Accessibility Information on www.mlb.com.

4.1. Accessibility Information Page.

No later than December 31, 2009, MLBAM will post an Accessibility Information page or pages on www.mlb.com. The page(s) will include, at a minimum, information regarding MLBAM’s efforts to meet the WCAG 2.0 Success Criteria on www.mlb.com and the Club Sites; FAQs regarding use of the site by Persons with Visual Impairments; usability tips for blind and visually impaired visitors to mlb.com and the Club Sites; and a web – based or email, and telephone – based method for Persons with Visual Impairments to contact MLBAM regarding accessibility concerns on www.mlb.com and the Club Sites. MLBAM will provide Claimants with a copy of the Accessibility Information page(s) prior to their being finalized. Claimants will provide their feedback on this information within fifteen (15) days of receipt, and MLBAM will consider the feedback provided by Claimants in good faith.

4.2. The Accessibility Information Page will, at a minimum, be available from a link on the following pages: MLB Home Page; low – bandwidth home page; MLB.com Customer Support pages; media center; Accessible Media Player log in pages; primary purchase pages for Gameday Audio and MLB.TV; and the home pages of all of the Club Sites.

5. Training.

5.1. www.mlb.com Telephone Customer Service.

MLBAM will provide training to appropriate persons staffing the mlb.com customer service telephone number provided to the public on the “contact” page of www.mlb.com. Such training will be designed to enable persons being trained to assist blind and visually impaired users of mlb.com with problems on mlb.com and the Club Sites. At a minimum, such training will include information about the access improvements being made to www.mlb.com and the Club Sites, FAQs related to accessibility, how computer users with visual impairments can purchase MLB subscriptions and locate and log – on to media players, the types of assistive technology used by blind and visually impaired web users, and the fact that many visually impaired computer users rely solely on a keyboard, and do not use a mouse, to navigate a website. MLBAM will provide Claimants with a copy of the training materials prior to their being finalized. Claimants will provide their feedback on the training materials within fifteen (15) days of receipt, and MLBAM will consider the feedback provided by Claimants in good faith. MLBAM will make a good faith effort to ensure that at least part of the training described herein is provided by a qualified Person with a Visual Impairment. MLBAM will use Reasonable Efforts to track calls to the customer service telephone number about accessibility issues and to provide a summary of such issues in advance of the meetings set forth in Section 6.

6. Meetings Regarding Accessibility of www.mlb.com and Club Sites.

6.1. The Parties shall meet telephonically at least twice per calendar year during the Term of this Agreement to discuss any issues set forth in Section 6.2. Claimant representatives and the mutually agreed on consultant described in Section 7.1 will participate in the first meeting.

6.2. At the request of any party, the following issues shall be discussed at the semi – annual meetings: feedback from Claimants regarding accessibility of www.mlb.com and the Club Sites; other feedback received by MLBAM regarding the accessibility of www.mlb.com and the Club Sites; issues experienced by MLBAM in implementing this Agreement; potential accessibility issues with new or planned content or services on www.mlb.com or the Club Sites; accessibility issues relating to captioning, transcripts and audio description on www.mlb.com and Club Sites, accessibility of MLB – related sites not covered by this Agreement, customer service calls and issues, and any other related issue that a party would like to discuss. At least ten (10) business days prior to each meeting pursuant to this section, Claimants and MLBAM shall submit to the other in writing a list of issues they would like to discuss at the meeting, and MLBAM shall provide Claimants with copies of reports generated by the automated tool described in Section 7.2 herein. Claimants may request that team or vendor representatives with information about any of the issues to be discussed be present at the meeting, and MLBAM will make good faith efforts to arrange for the participation of those persons or entities.

7. Monitoring Provisions.

7.1. Mutually Agreed on Consultant.

As part of the Structured Negotiations process, MLBAM hired a mutually agreed upon consultant to assist it in improving the accessibility of www.mlb.com and the Club Sites. Except as provided herein, MLBAM will maintain a contract with this mutually agreed upon consultant throughout the term of this agreement to assist MLBAM in implementing this agreement. If MLBAM decides to replace the consultant, or if the mutually agreed upon consultant is no longer available, the Parties will work in good faith to find alternative mutually agreed upon consultant(s) to assist MLBAM in fulfilling its obligations under this Agreement.

7.2. Reports.

No later than May 1 of each year during the Term of this Agreement, the mutually agreed upon consultant will prepare a report that at a minimum will include a review of the following for compliance with WCAG 2.0, Level AA: (i) MLB.com Homepage; (ii) two team home pages randomly selected by the consultant; (iii) two statistics pages randomly selected by the consultant and the path to player statistics from the MLB.com Homepage; (iv) GameDay Audio purchase page, log – in and listening page; (v) if materially different from the GameDay Audio pages referenced in (iv), MLB.TV purchase page, log – in and listening page; (v) Accessibility Page(s) described in Section 4; and (vi) two Club ticket purchase paths that are controlled by MLBAM or its subsidiary randomly selected by the consultant. If the consultant concludes that any content reviewed for the report does not satisfy WCAG 2.0 Level AA Success Criteria, the consultant will propose a resolution that satisfies the Criteria. MLBAM will provide a copy of the consultant’s reports to Claimants by May 15 of each year during the Term of this Agreement, and will indicate whether or not MLBAM will implement the proposed resolution and by what date. Claimants shall keep confidential the consultant’s reports except as required to be disclosed for purposes of the Dispute Resolution Process set forth in Section 8 of this Agreement. Any disagreements over the consultants’ reports may be submitted to submitted to the Dispute Resolution Process set forth in Section 8 of this Agreement.

7.3. Automated Compliance Tool.

Once per quarter during the term of this Agreement, MLBAM will utilize an automated compliance tool to help it assess accessibility issues on www.mlb.com and the Club Sites. The tool, and its best use, will be agreed on by MLBAM and the mutually agreed upon consultant, with input from Claimants. At the semi – annual meetings provided for in Section 6 of this Agreement, MLBAM will provide Claimants with the results of the reports generated by the tool.

7.4. Feedback from Claimants.

Claimants will notify MLBAM in writing if they believe that there is content on www.mlb.com or any Club Site that does not meet the requirements of this Agreement. Within ten days of receiving this information from the Claimants, MLBAM will respond in writing, and at the request of either party, the Parties will confer by telephone in an attempt to informally resolve the issue. If the Parties are unable to resolve the issue, MLBAM will ask the mutually agreed upon consultant specified in Section 7.1 to provide an opinion on the issue.

7.5. Based on the consultant’s opinion, MLBAM may (i) adhere to the opinion, if favorable to MLBAM, in which case Claimants may contest the opinion by means of the Dispute Resolution Process set forth in Section 8 of this Agreement; (ii) adhere to the opinion and remedy the instance of non – compliance, which it will do within a reasonable time frame after receiving the opinion; or (iii) contest the opinion (including any timeframe for remedy proposed by the consultant) by means of the Dispute Resolution Process set forth in Section 8 of this Agreement.

8. Dispute Resolution Process.

8.1. In the event of (i) a claim by one or more of the Parties that one or more of the other Parties are in breach of this Agreement; or (ii) a disagreement over the consultant’s report specified in Section 7.2 or the consultant’s opinion specified in Section 7.5, the Party or Parties alleging breach or in disagreement with the consultant will provide written notice to the other Party or Parties of its position and the Section of the Agreement at issue. Such Notice will include a brief statement of the specific facts, circumstances, and legal arguments supporting the Parties’ position.

8.2. Within two weeks of the date of the Notice provided for in Section 8.1 above, the Parties will engage in a meet – and – confer process to resolve the matter.

8.3. If the matter remains unresolved after a reasonable meet – and – confer period, the Parties will resort to mediation before a mutually agreed – upon mediator to resolve the matter.

8.4. If mediation fails to resolve the matter, the Parties then will settle the matter finally by means of arbitration conducted by Judicial Arbitration & Mediation Services (“JAMS”) pursuant to its Streamlined Arbitration Rules and Procedures at a mutually convenient location. The arbitrator may award the prevailing party its reasonable attorneys’ fees, expenses, expert witness fees, and other costs pursuant to applicable law. The award of the arbitrator will be enforceable in a court of competent jurisdiction.

8.5. In any dispute regarding MLBAM’s compliance with the obligations of Section 3 above, MLBAM shall have the burden of demonstrating that it used Reasonable Efforts.

9. Publicity Regarding This Agreement and Its Terms.

The Parties agree that promptly following the execution of this Agreement they shall release a joint press release as shown in Exhibit A. Neither Party may release any other press announcement regarding the subject matter of this Agreement without the prior written approval of the other Party, which approval shall not be unreasonably withheld. All public statements made about this Agreement shall be consistent with the terms of this Agreement and shall reflect the collaborative method in which the Parties resolved the Dispute.

10. Additional Community Outreach.

Representatives of MLBAM and the Claimants will meet by telephone on a mutually agreed on date during the first quarter of 2010 to discuss outreach to the visually impaired community concerning MLBAM’s accessibility efforts. In future years, this issue may, at the request of any Party, be discussed at the meetings described in Section 6 of this Agreement.

11. Notice or Communication to Parties.

Any notice or communication required or permitted to be given to the Parties hereunder shall be given in writing by email and United States mail, addressed as follows:

To Claimants:

Linda M. Dardarian

c/o Goldstein, Demchak, Baller, Borgen & Dardarian

300 Lakeside Drive, Suite 1000

Oakland, CA 94612

[email address omitted]

Lainey Feingold

c/o Law Office of Lainey Feingold

1524 Scenic Avenue

Berkeley, CA 94708

[email address omitted]

To MLBAM:

Michael J. Mellis

MLB Advanced Media, L.P.

75 Ninth Avenue

New York, New York 10011

[email address omitted]

12. Modification in Writing.

No modification of this Agreement by the Parties shall be effective unless it is in writing and signed by authorized representatives of all the parties hereto.

13. Agreement Binding on Assigns and Successors; No Third Party Beneficiaries.

13.1. Assigns and Successors.

This Agreement shall bind any assigns and successors of MLBAM. Within thirty (30) days of assignment or succession, MLBAM shall notify Claimants in writing of the existence, name, address and telephone number of any assigns or successors relating to the subject matters addressed herein.

13.2. No Third Party Beneficiaries.

This Agreement is for the benefit of the Parties hereto only and no other person or entity shall be entitled to rely hereon, receive any benefit herefrom, or enforce against either party any provision hereof. The Parties specifically intend that there be no third party beneficiaries to this Agreement.

14. Force Majeure.

The performance of MLBAM under this Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, unavailability of parts, equipment or materials through normal supply sources, security threat, or any other event of force majeure. If MLBAM seeks to invoke this section it shall notify Claimants in writing as soon as reasonably practicable, specifying the particular action(s) that could not be performed and the specific reason for non – performance. Claimants’ Counsel and the Party(ies) invoking this section will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this section, or any future action to be taken, that remains after the meet and confer session will be submitted to the Dispute Resolution Process set forth in Section 8 of this Agreement.

15. Integrated Agreement.

This Agreement and the Confidential Addendum hereto constitute the final, complete and exclusive Agreement between the Parties relating to the subject matters addressed herein and supersedes any prior or contemporaneous written or oral agreements between the Parties, including without limitation the Structured Negotiations Agreement. The terms of this Agreement are contractual and not merely recitals.

16. Rules of Construction.

Each Party and its legal counsel have reviewed and participated in the drafting of this Agreement and any rule of construction to the effect that ambiguities are construed against the drafting Party shall not apply in the interpretation or construction of this Agreement. Section titles used herein are intended for reference purposes only and are not to be construed as part of the Agreement. The Recitals are integral to the construction and interpretation of this Agreement and are therefore incorporated into this Agreement in their entirety.

17. Multiple Originals/Execution in Counterparts.

All Parties and Claimants’ Counsel shall sign three (3) copies of this document and each such copy shall be considered an original. This document may be executed in counterparts and facsimile signatures shall be accepted as original.

SO AGREED:

PARTIES:

MLB Advanced Media

By: Michael Mellis, Esq., SVP, General Counsel

AMERICAN COUNCIL OF THE BLIND

By: Melanie Brunson, Executive Director

BAY STATE COUNCIL OF THE BLIND

By: Bob Hachey, President

CALIFORNIA COUNCIL OF THE BLIND

By: Jeff Thom, President

APPROVED AS TO FORM:

MLBAM

By: Michael Mellis, Esq., SVP, General Counsel

GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN

By: Linda M. Dardarian, Esq.

LAW OFFICE OF LAINEY FEINGOLD

By: Lainey Feingold, Esq.

DISABILITY LAW CENTER

By: Richard M. Glassman, Esq.

Simplified Summary: This document is the settlement agreement signed as a result of the collaboration between Major League Baseball and the blind community. MLB agreed to make changes to its website and the websites of 30 baseball teams. The changes will make it easier for people with visual impairments to use the sites. MLB worked with the American Council of the Blind, the Bay State Council of the Blind and the California Council of the Blind. Lainey Feingold and Linda Dardarian were the lawyers for the blind community. No lawsuit was filed. Instead, a formal process known as Structured Negotiations was used. [Back to Agreement]

Filed under Settlement Agreements, Web Accessibility Settlements on Feb 11th, 2010

CVS Accessible Web Site and Point of Sale Settlement Agreement

This CVS Accessible Web Site and Point of Sale Settlement Agreement was negotiated by Lainey Feingold and Linda Dardarian using Structured Negotiations on behalf of the American Council of the Blind (ACB), the American Foundation for the Blind, and the California Council of the Blind (CCB). In the Agreement, CVS agreed to install tactile point of sale devices in every CVS store in the United States and to upgrade its website to comply with the Web Content Accessibility Guidelines (WCAG) promulgated by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium. On July 30, 2009, the parties issued a press release about the CVS settlement.

Simplified Summary of this Document

SETTLEMENT AGREEMENT

This Settlement Agreement (the “Agreement”) and a related agreement entitled Confidential Addendum to Settlement Agreement, a copy of which is incorporated by reference into this Agreement (the “Confidential Addendum”) (this Agreement and the Confidential Addendum are collectively referred to as the “Full Agreement”) is entered into as of the Effective Date by and between the following parties: American Council of the Blind (”ACB”), American Foundation for the Blind (”AFB”), and California Council of the Blind (”CCB”), (collectively, the “Claimants”), and CVS Pharmacy, Inc. (”CVS”). Claimants and CVS are collectively referred to as the “Parties.”

RECITALS

A. ACB is a non – profit organization that provides advocacy services in the United States on behalf of individuals who are blind or have visual impairments. CCB is ACB’s California affiliate serving the needs of blind and visually – impaired persons throughout the State of California. ACB is incorporated in Washington D.C. and has its place of business in Arlington, Virginia. CCB is incorporated and has its place of business in the State of California.

B. AFB is a national non – profit organization whose mission is to eliminate the inequities faced by the more than ten million blind and visually impaired persons in the United States. AFB’s headquarters are in New York, New York, and its Public Policy Center is in Washington, D.C. In negotiations leading to execution of this agreement, Claimants have been represented by Linda M. Dardarian of Goldstein, Demchak, Baller, Borgen and Dardarian, and Lainey Feingold of The Law Office of Lainey Feingold.

C. CVS owns and operates the nation’s largest retail pharmacy chain, with stores in California and other states across the United States. CVS strives to make its retail stores accessible to all of its customers, including those with disabilities. In negotiations leading to execution of this Agreement, CVS has been represented by Regan Greene, Senior Legal Counsel – Labor & Employment, CVS Pharmacy, Inc., and Robert Naeve of Jones Day.

D. CVS equips its stores with “POS Devices” to assist customers in making credit and debit card purchases.

E. CVS Stores constructed prior to January 1, 2006 and not remodeled since that date are equipped with Hand Held Products’ TT810 POS Device (”Hand Held POS Device”). CVS Stores constructed or remodeled after January 1, 2006 are equipped with Hypercom L4100 POS Devices (”Hypercom POS Device”). CVS plans to install Verifone MX860 POS devices (”Verifone POS Device”) in new and remodeled stores after September 1, 2008. Both Hand Held Products and Hypercom provide removable overlays with Tactile Keypads that customers with visual impairments can use to input their Personal Identification Numbers, or PINs. The Hand Held removable overlay is available as Hand Held ADA – Keypad, Part Number 30104 – 0088 (”Hand Held POS Overlay”). The Hypercom removable overlay is available as the Hypercom ADA Keypad Appliance (”Hypercom POS Overlay”). A Tactile Keypad is integrated into the design of the Verifone POS Device; it does not require a separate overlay.

F. CVS operates a retail website located at www.cvs.com that provides information and allows customers to shop for and purchase online certain goods and services, including prescription refills. Prior to the Effective Date, CVS hired a website consultant, that has been approved by Claimants, to assist CVS evaluate the accessibility of CVS.com and to ensure that CVS.com substantially complies with the Priority 1 and 2 Checkpoints of the World Wide Web Consortium Web Content Accessibility Guidelines Version 1.0.

G. In the third quarter of 2005, Claimants contacted CVS regarding the lack of Tactile Keypads on POS Devices at CVS Stores. Claimants contended that the lack of Tactile Keypads violates Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., California’s Unruh Act, Cal. Civ. Code §§ 51 et seq., and California’s Blind and Disabled Persons Act, Cal. Civ. Code §§ 54 et seq., and other similar federal, state, local, or administrative laws, statutes, rules, or regulations relating to disability access or disability discrimination by a public accommodation or business (”Public Accommodation Laws”). The Parties subsequently entered into Structured Negotiations to resolve the dispute regarding the lack of Tactile Keypads on POS Devices at CVS Stores (”POS Dispute”). In the course of the negotiations, Claimants’ members conducted in – store testing of the Hand Held and Hypercom POS Overlays. Claimants acknowledge that purchase and installation of the Hypercom and Hand Held POS Overlays and Verifone POS Devices as set forth in this Agreement, coupled with implementation of all other terms of the Full Agreement, resolves the POS Dispute and the Claims raised in their November 10, 2005 letter.

H. In the second quarter of 2007, Claimants contacted CVS regarding the accessibility of CVS.com to persons with visual impairments. Claimants contended that certain inaccessible features and content on CVS.com violated the Public Accommodation Laws. The Parties subsequently entered into Structured Negotiations to resolve the dispute regarding the accessibility of CVS.com for persons with visual impairments (”Web Dispute”). Claimants acknowledge that implementation of all terms of the Full Agreement related to CVS.com resolves the Web Dispute and the Claims raised in connection therewith.

I. CVS disputes whether Public Accommodation Laws apply to its POS Devices or CVS.com. CVS denies that it has engaged in any unlawful or wrongful conduct with respect to the alleged inaccessibility of its POS Devices or CVS.com, and further denies that Claimants or any of their members have been injured or have suffered damages in any amount, or at all. Nonetheless, CVS and Claimants desire to resolve the POS Dispute and the Web Dispute.

AGREEMENT

NOW, THEREFORE, in consideration of the recitals outlined above, and for other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Incorporation of Recitals.

The recitals outlined above are incorporated by this reference into the terms and conditions of this Agreement.

2. Duration of Agreement.

This Agreement shall become effective on April 15, 2009 (the “Effective Date”) and shall remain in effect until December 31, 2010.

3. Definitions.

As used in the Full Agreement, the following terms shall be as defined below:

3.1. Counsel means Goldstein, Demchak, Baller, Borgen and Dardarian, The Law Office of Lainey Feingold, and the attorneys practicing law therein.

3.2. CVS.com refers to the website located at www.cvs.com as well as all subsidiary pages located at www.cvs.com/.

3.3. CVS Store means a retail store owned and operated by CVS in the United States, and operating under the name, “CVS/pharmacy.”

3.4. Existing CVS Store means a CVS Store that is open to the public as a CVS Store on the Effective Date.

3.5. Front Counter means the counter near the front of a CVS Store where one or more POS Devices are placed and which is utilized by CVS employees to assist customers in paying for products or services. There is only one Front Counter in any CVS Store.

3.6. Hand Held POS Overlay refers to the Hand Held Products 30104 – 0088 ADA keypad, which is designed for use with Hand Held’s TT810 POS Device. All Hand Held POS Devices in all CVS stores shall be programmed so that customers may use the Hand Held POS Overlay to input, correct, cancel and enter Personal Identification Numbers (”PINs”).

3.7. Hypercom POS Overlay means the ADA Keypad Appliance manufactured by Hypercom that is designed to be placed on, and work in conjunction with, Hypercom’s L4100 POS Device. All Hypercom POS Devices in all CVS Stores shall be programmed so that customers may use the Hypercom POS Overlay to input, correct, cancel and enter Personal Identification Numbers (”PINs”).

3.8. New CVS Store means a CVS Store that is first opened to the public as a CVS Store after the Effective Date.

3.9. Next Generation POS Device means the Verifone MX860 POS device, which is equipped with an integrated Tactile Keypad and is programmed so that customers may use the Tactile Keypad to input, correct, cancel and enter Personal Identification Numbers (”PINs”). Next Generation POS Device may also mean an equivalent POS Device that has an integrated Tactile Keypad, provides customers with visual impairments the same or greater level of privacy and ability to input their PINs as provided with Verifone MX860 POS Device, and which can be rolled out pursuant to the schedules set forth in section 4 of this Agreement.

3.10. Pharmacy Counter means a counter, separate from the Front Counter, located in the Pharmacy area of a CVS Store where one or more POS Devices are placed and which is utilized by CVS employees to assist customers in paying for products or services, including pharmaceutical products. There is only one Pharmacy Counter in any CVS Store.

3.11. Photo Counter means a counter, separate from the Front and Pharmacy Counters, where one or more POS Devices is placed and which is utilized by CVS employees to assist customers in paying for products or services including photographic products or services. Not all CVS Stores have a Photo Counter, but in no event is there more than one Photo Counter in any CVS Store. For purposes of this Agreement, any counter – whether or not photographic products or services are offered at or near the counter – that is connected or adjacent to the Front Counter or the Pharmacy Counter of any CVS Store does not constitute a Photo Counter as defined in this Agreement.

3.12. Point of Sale Device or POS Device means a device used by a customer at a point of purchase that is staffed by a CVS employee and allows the customer to pay for items with a debit, credit or other electronic funds card. For purposes of this Agreement, the HandHeld TT810, Hypercom L – 4100 and Verifone MX860 are deemed to be “POS Devices.” Other equipment that may be used by a customer to scan, price, or weigh products is not within the definition of “Point of Sale Device” or “POS Device,” and such other equipment is expressly excluded from the terms, requirements and releases of this Agreement.

3.13. POS Overlay means either the Hand Held POS Overlay or the Hypercom POS Overlay.

3.14. Tactile Keypad means a number keypad on which each key (button) is tactually discernable from surrounding surfaces and adjacent keys, and which provides audible feedback (either through the Tactile Keypad or the POS Device) when the user has depressed the keys sufficiently to register number or function key inputs. Numeric keys shall be arranged in a 12 key ascending telephone keypad layout. The number five key shall be tactually distinct from the other keys by means of a raised dot. The following function keys on the Tactile Keypad can be to the right of or below the number keys and have the following colors and raised tactile markings: Enter /Accept (green with a raised circle), Cancel (red with a raised “x”) and Clear or Correct (yellow with a raised backward arrow, vertical line or forward or backward slash). Plaintiffs agree that the Hand Held POS Overlay, the Hypercom POS Overlay and the Verifone POS Device utilize Tactile Keypads that comply with this Agreement. Any other Next Generation POS Device CVS may choose to install during the term of this Agreement shall include a Tactile Keypad.

3.15. Third Party Content means data, content or any other information that: (a) is created or provided by a third party other than CVS.com; (b) is displayed or otherwise made available to individuals who visit any CVS.com web page; and (c) is not written, controlled or maintained by CVS.com. By way of example only, the term “Third Party Content” includes but is not limited to data, content or other information that (i) is not stored on CVS.com servers; (ii) is contained on web pages or web sites maintained by third parties that link to or from any CVS.com web page; and (iii) otherwise is not displayed on a CVS.com web page.

3.16. WCAG Guidelines means either: Priority 1 and 2 checkpoints of WCAG 1.0 or Level A and AA Success Criteria set forth in WCAG 2.0. CVS retains the sole, exclusive and unfettered discretion to determine whether to comply with WCAG 1.0 or WCAG 2.0.

4. CVS’s Responsibilities with Respect to POS Devices.

4.1. Installation of Tactile Keypads at Existing CVS Stores Within California.

CVS will permanently affix Tactile Keypads on all POS Devices in Existing CVS Stores in California no later than December 31, 2008.

4.2. Installation of Tactile Keypads at Existing CVS Stores Outside California.

On or before December 31, 2008:

4.2.1. CVS will equip stores that have separate Pharmacy, Photo and Front Counters with four POS Overlays. One Overlay shall be permanently affixed to a POS Device located at the Front Counter; one Overlay shall be permanently affixed to a POS Device located at the Pharmacy Counter; one Overlay shall be permanently affixed to a POS Device located at the Photo Counter; and one Overlay shall be maintained at the Front Counter, or at such other location as store management may from time to time designate, for retrieval by cashiers on an as – needed basis to assist customers with visual impairments.

4.2.2. CVS will equip stores that do not have Photo Counters with three POS Overlays. One POS Overlay shall be permanently affixed to a POS Device located at the Front Counter; one Overlay shall be permanently affixed to a POS Device located at the Pharmacy Counter. The third POS Overlay shall be maintained at the at the Front Counter, or at such other location as store management may from time to time designate, for retrieval by cashiers on an as – needed basis to assist customers with visual impairments.

4.2.3. If fewer than all POS Devices at a Pharmacy, Photo or Front Counter have Tactile Keypads, at least one POS Device with a permanently affixed Tactile Keypad will be operable at each such counter during all hours of the counter’s operations.

4.3. Installation of Tactile Keypads at New CVS Stores.

Commencing on the Effective Date, CVS shall at its option either equip all POS Devices in New CVS Stores with Hypercom POS Overlays or install Next Generation POS Devices at all checkstands in New CVS Stores.

4.4. Cash Back Functionality.

By no later than December 31, 2010, all POS Devices that are equipped with POS Overlays pursuant to Sections 4.1, 4.2 and 4.3, as well as all Next Generation POS Devices, shall be programmed so that customers with visual impairments may input, correct, cancel and enter cash back amounts.

4.5. Equivalent Next Generation POS Devices.

The Parties acknowledge that CVS may decide to equip CVS Stores with a Next Generation POS Device other than the Verifone POS Device. If CVS decides to equip stores with a Next Generation POS Device other than the Verifone POS Device, CVS shall allow Claimants to test and provide suggestions or other feedback on any such Next Generation POS Device prior to making a final purchasing decision. Claimants shall provide any suggestions or feedback within ten days of the testing. CVS will consider in good faith the suggestions or other feedback provided by Claimants but will not be in breach of the Agreement if it does not follow or adopt Claimants’ suggestions or feedback. CVS retains the discretion to decide on the type and nature of Next Generation POS Devices to be installed. However, any such device will include at least the same level of functionality for customers with visual impairments as provided by the Verifone POS Device.

4.6. Acquiring Next Generation or Equivalent Next Generation POS Devices.

After the Effective Date, and during the term of this Agreement, to the extent CVS acquires additional POS Devices to install at CVS Stores, CVS will acquire only Next Generation or Equivalent Next Generation POS Devices.

4.7. Maintenance.

CVS will use its good faith efforts to maintain all POS Devices and POS Overlays in working condition except for isolated or temporary interruptions in service due to maintenance or repairs.

4.8. Rollout Information to Claimants.

Within 45 days of each date set forth in Section 4.1 and 4.2, CVS will provide written confirmation to Claimants that the required Tactile Keypads have been installed.

5. Training of CVS Personnel.

5.1. CVS has modified its current training materials to include instructions to its managers and sales associates regarding (i) the installation and operation of the Hypercom and Hand Held POS Overlays as well as the Verifone POS Device; (ii) the reason blind and visually impaired CVS customers need to use tactile keys to input PINs; (iii) the manner in which blind and visually impaired CVS customers use the POS Overlays and Verifone POS Device; (iv) the location of Tactile Keypads and Overlays and how to retrieve the non – affixed POS Overlays for use as needed; and (v) guidelines for appropriate interactions with visually impaired customers using CVS POS Devices, including how to direct customers with visual impairments to the POS Devices with Tactile Keypads. Claimants have reviewed these materials and acknowledge that the materials, when appropriately communicated, provide adequate information necessary for CVS employees to assist customers to complete transactions with the POS Overlays. CVS will use its good faith efforts to distribute these training materials in a timely manner to ensure that the provisions of this Agreement are implemented effectively.

5.2. CVS reserves the right to change, replace, or modify the training materials referenced above as business needs require, and any such change, replacement, or modification will not constitute a breach of this Agreement. CVS will provide Claimants with a draft of any significant changes in the content of the training materials regarding the issues listed in Section 5.1 above, and Claimants shall provide any feedback within fourteen days of receipt of such draft. CVS will consider in good faith the feedback provided by Claimants but will not be in breach of the Agreement if CVS does not incorporate the feedback. CVS will not finalize such training materials before receiving Claimants’ feedback.

6. CVS’s Responsibilities with Respect to CVS.com.

6.1. Accessibility of CVS.com.

CVS will use best efforts to ensure that all pages of CVS.com substantially comply with the WCAG Guidelines.

6.1.1. CVS shall retain the outside consultant that has already been approved by Claimants, to audit CVS.com for substantial compliance with the WCAG Guidelines, and to provide a written report regarding its findings. CVS shall provide to Claimants a copy of the consultant’s final audit report within ten days after execution of this Agreement by all Parties. Claimants shall provide CVS with any feedback in writing regarding the consultant’s final audit report within ten days after they receive the final audit report. CVS will give good faith consideration to all feedback provided by Claimants.

6.1.2. On or before May 31, 2009 or within a reasonable period of time after CVS receives the feedback provided by Claimants as described in Section 6.1.1 above, CVS will provide to Claimants a written proposal describing the steps it proposes to take to ensure that CVS.com substantially complies with the WCAG Guidelines, as well as a timeline by which these steps will be taken. The timeline shall set a compliance deadline of no later than December 31, 2009. The Parties shall meet and confer in good faith regarding the steps CVS shall take to substantially comply with the WCAG Guidelines, as well as the timeline for such compliance as required by this Agreement. If the Parties fail to reach agreement on these issues after a reasonable meet and confer period, the matter will be resolved pursuant to Sections 10.3.1 and 10.4, below.

6.2. Third Party Content Exclusion.

Section 6 of this Agreement shall not apply to any Third Party Content on CVS.com. CVS shall meet and confer with Claimants in the event it chooses to outsource, or otherwise transfer from itself to a third party, responsibility for providing or maintaining data, content or any other information on CVS.com.

6.3. RFPs for Third Party Content.

If, on or after the Effective Date, CVS issues requests for proposals or enters into contracts for development or inclusion of new Third – Party content on CVS.com, CVS will make good faith efforts to locate and select contractors and vendors that are able to comply with WCAG Guidelines. However, nothing in this Agreement shall preclude CVS from including Third – Party Content on CVS.com – even if such content does not comply with the Priority 1 and 2 checkpoints of WCAG

6.4. Accessibility Information.

CVS will post information on CVS.com, linked from the homepage, describing its efforts to comply with WCAG. CVS will provide a method by which users can notify the company about web accessibility concerns.

7. Meetings with Claimant Representatives.

7.1. On a date during the second or third quarter of 2009 that is mutually agreed to by the Parties, and on a date during the first or second quarter of 2010 that is mutually agreed to by the Parties, CVS will meet by telephone or in person with representatives of Claimants to elicit input and receive feedback regarding the implementation of this Agreement, whether installation of additional POS Overlays prior to installation of Next Generation POS Devices in CVS stores is necessary to ensure effective service to customers who are blind or have visual impairments, and any other issue regarding technology used by CVS customers and its effect on customers who are blind or have visual impairments.

7.2. On a date during the second quarter of 2009 to be determined by the Parties, the Parties shall begin negotiating in good faith regarding the accessibility of www.caremark.com, www.cvscaremark.com, and any other websites owned or operated by CVS. The Parties anticipate entering into a separate agreement, or amending this Agreement, with respect to accessibility of these additional websites. Nothing in this paragraph 7.2 shall obligate or require CVS to ensure that any website other than www.cvs.com complies with the standards set forth in Section 6 of this Agreement.

8. Joint Press Release.

The Parties agree to issue a joint press release to announce the terms of the Parties’ settlement, as described in the Agreement. The press release that the Parties shall issue is attached to the Agreement as Exhibit A.

9. Right to Seek Modification.

9.1. CVS may modify the schedules set forth in Sections 4 and 6 above if CVS reasonably concludes in good faith that unforeseen circumstances render compliance with these Sections impossible or impracticable.

9.2. If CVS determines that it cannot comply with the schedules set forth in Sections 4 and 6 above, it shall provide to Claimants a written Notice of Modification, describing the factual basis for its conclusion that compliance with the schedules set forth in Section 4 and 6 is impossible or impracticable, and providing a revised schedule by which it proposes to comply with the terms and conditions of this Agreement. Claimants shall meet and confer with CVS within 60 days after their receipt of CVS’s Notice of Modification. If the Parties have not reached agreement regarding the Notice, the matter will be resolved pursuant to Section 10.4, below.

9.3. CVS shall not be in breach of any term of this Agreement if it fails to comply with the schedules set forth in Section 4 and 6 after providing to Claimants a Notice of Modification pursuant to Section 9.1 above.

10. Procedures in the Event of Disputes.

10.1. Notice of Non – Compliance.

If any of the Claimants believe that CVS has not complied with any provision of the Agreement, the Claimants shall provide CVS with a Notice of Non – compliance containing the following information:

10.1.1. the alleged act of non – compliance;

10.1.2. a reference to the specific provision(s) of the Agreement that are involved;

10.1.3. a statement of the remedial action sought by the initiating party; and

10.1.4. a brief statement of the specific facts, circumstances and legal argument supporting the position of the initiating party.

10.2. Response.

Within 45 days of receipt of a Notice provided pursuant to Section 10.1, CVS shall respond to the Claimants in writing.

10.3. Meet and Confer.

Within two weeks after the response described above, the Parties shall informally meet and confer and attempt to resolve the issues raised in the Notice.

10.3.1. If the issue relates to Section 6, or any of the subparts therein, of this Agreement, and remains unresolved after the meet and confer, within 30 days of the final meet and confer CVS will ask its consultant to provide an opinion on the issue within ten days of CVS’s request. The opinion shall be provided to Claimants within ten days of its receipt by CVS. Should the Parties continue to have a dispute regarding the alleged noncompliance after the procedures set forth above have been exhausted, the dispute shall continue to be handled pursuant to the mediation / arbitration procedures set forth in this Agreement.

10.4. Submission to Mediation/Binding Arbitration.

10.4.1. If the matters raised in a Notice of Non – Compliance are not resolved within 45 days of the initial meet and confer session required by Section 10.3 above, or, where applicable, within 45 days of receipt of the web consultant’s opinion by Claimants, either party may submit the unresolved matters to nonbinding mediation before a mediator affiliated with JAMS, or such other mediator as the Parties may jointly designate.

10.4.2. If the dispute is not settled in mediation, it shall be submitted to binding arbitration before an arbitrator affiliated with JAMS. The arbitration hearing shall be conducted in accordance with the JAMS Streamlined Arbitration Rules & Procedures. However, those Rules may be modified as necessary to ensure that the hearing is held as soon as practicable after the submission to arbitration, and that a written decision on the matter is rendered within 60 days of the last hearing date.

10.4.3. The Mediation / Binding Arbitration provisions of this Agreement provide the sole and exclusive means for resolving any dispute that may arise between the Parties pursuant to this Agreement during the Term of this Agreement. The Claimants agree that during the Term of the Agreement in no event will any of them initiate legal or administrative action against CVS in any court of law or regulatory entity for any reason related to the subject matter addressed in this Agreement.

11. Notice or Communication to Parties.

Any notice or communication required or permitted to be given to the Parties hereunder shall be given in writing by email and United States mail, addressed as follows:

To Claimants:

Linda M. Dardarian

Goldstein, Demchak, Baller, Borgen & Dardarian

Borgen & Dardarian

300 Lakeside Drive, Suite 1000

Oakland, CA 94612

[email address omitted]

Lainey Feingold

Law Office of Lainey Feingold

1524 Scenic Avenue

Berkeley, CA 94708

[email address omitted]

To CVS:

Regan M. Greene

Senior Legal Counsel – Labor & Employment

CVS Pharmacy, Inc.

One CVS Drive

Woonsocket, RI 02895

[email address omitted]

Robert A. Naeve

Jones Day

3 Park Plaza

Suite 1100

Irvine, California 92614

[email address omitted]

11. Modification in Writing.

No modification of the Agreement shall be effective unless in writing and signed by authorized representatives of all Parties.

12. No Other Representations.

The Parties acknowledge and agree that they execute the Agreement voluntarily and for their own purposes, and that they have not relied upon representations, statements or promises made by any of the other Parties, or by their respective agents or attorneys.

13. Agreement Has Been Read.

The Agreement has been carefully read by each of the Parties, or their responsible officers, and its contents are known and understood by each of the Parties. The Agreement is signed freely by each party executing it.

14. No Assignment.

No Party to the Agreement has heretofore assigned, transferred or granted, or purported to assign, transfer or grant, any of the claims, demands, or cause or causes of action disposed of by the Agreement.

15. Agreement Binding on Assigns And Successors.

The Agreement shall bind any assigns and successors of the Parties.

16. Force Majeure.

The performance of CVS under this Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, or unavailability of operable parts, equipment or materials through normal supply sources. If CVS seeks to invoke this Section, it shall notify Counsel in writing as soon as reasonably possible, specifying the particular action that could not be performed and the specific reason for the non – performance. Counsel and CVS will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to Section 10 of this Agreement.

17. No Admission of Liability.

In entering into this Agreement, CVS does not admit, and specifically denies, that it has violated or failed to comply with any Public Accommodation Laws.

18. Authority.

The persons executing the Agreement each represent and warrant that he or she has the authority to enter into the Agreement, and to resolve the matters set forth in the Agreement, on behalf of the Party for whom he or she is executing the Agreement, and that no further approval is necessary in order for the Agreement to be binding on the Party for whom he or she is executing.

19. Integrated Agreement.

The Full Agreement constitutes a single, integrated written contract expressing the entire agreement of the Parties. There is no other agreement, written or oral, express or implied, between the Parties with respect to accessibility of POS Devices or CVS.com, except the Full Agreement.

20. Rules of Construction.

The Parties and their counsel have reviewed and participated in the drafting of the Agreement; and any rule of construction to the effect that ambiguities are construed against the drafting party shall not apply in the interpretation or construction of the Agreement. Section titles used herein are intended for reference purposes only and are not to be construed as part of the Agreement. The Recitals are integral to the construction and interpretation of the Agreement and are therefore incorporated into the Agreement in their entirety.

21. Triplicate Originals/Execution in Counterparts.

All Parties and their respective counsel shall sign three copies of this document and each such copy shall be considered an original. This document may be executed in counterparts.

Dated: June __, 2009.

CVS PHARMACY, INC.

Dated: June __, 2009.

AMERICAN COUNCIL OF THE BLIND

By: Melanie Brunson, Executive Director

Dated: June __, 2009.

AMERICAN FOUNDATION FOR THE BLIND

By: Paul Schroeder, Vice President, Programs & Policy Group

Dated: June __, 2009.

CALIFORNIA COUNCIL OF THE BLIND

By: Jeff Thom, President

Approved as to form:

Dated: June __, 2009.

JONES DAY

By: Robert A. Naeve, Attorneys for CVS

Dated: June __, 2009.

GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN

By: Linda M. Dardarian, Attorneys for Claimants

Dated: June __, 2009.

LAW OFFICE OF LAINEY FEINGOLD

By: Lainey Feingold, Esq., Attorneys for Claimants

Simplified Summary: This document is the legal agreement signed by CVS with the American Council of the Blind (ACB), the American Foundation for the Blind and the California Council of the Blind (CCB). CVS agreed to make changes so blind people could use payment cards and enter their own PIN. CVS agreed to add keys to their payment devices that a person can feel. Every store in the U.S. will have keypads. CVS also agreed to make changes to its website. The changes will make it easier for people with disabilities to use the site. Lainey Feingold and Linda Dardarian were the lawyers for the blind community. No lawsuit was filed. Instead, a formal process known as Structured Negotiations was used. [Back to Agreement]

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Filed under Settlement Agreements, Point of Sale Settlements, Web Accessibility Settlements on Jul 30th, 2009

Staples Accessible Web Site and Point of Sale Settlement Agreement

This Staples Accessible Web Site and Point of Sale Settlement Agreement was negotiated by Lainey Feingold and Linda Dardarian using Structured Negotiations on behalf of the American Council of the Blind (ACB), the American Foundation for the Blind, and the California Council of the Blind (CCB). In the Agreement, Staples agreed to install tactile point of sale devices in every Staples store in the United States and to upgrade its website to comply with the Web Content Accessibility Guidelines (WCAG) promulgated by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium. On April 23, 2009, the parties issued a press release about the Staples settlement.

Simplified Summary of this Document

SETTLEMENT AGREEMENT

This Settlement Agreement (hereinafter “Settlement Agreement”) and the related and incorporated document entitled Confidential Addendum to Settlement Agreement (collectively referred to herein as the “Full Agreement”) are entered into as of the Effective Date, as defined below in Section 1.6, by and between the following parties: American Council of the Blind (”ACB”), American Foundation for the Blind (”AFB”), Bay State Council of the Blind (”BSCB”) and California Council of the Blind (”CCB”) (collectively, the “Claimants”), and Staples, Inc. (”Staples”). Claimants and Staples are at times referred to collectively herein as the “Parties.”

RECITALS

The Full Agreement is based on the following facts:

A. ACB, a non – profit corporation that provides advocacy services in the United States on behalf of individuals who are blind or have visual impairments, is dedicated to promoting the full integration of persons who are blind or have visual impairments into all aspects of society, and provides information to the general public about the accomplishments, needs and contributions of persons who are blind or visually – impaired. BSCB and CCB are ACB affiliates, serving the needs of blind and visually – impaired persons throughout Massachusetts and California respectively. ACB is incorporated and has its place of business in Washington, D.C. BSCB is incorporated and has its place of business in the Commonwealth of Massachusetts. CCB is incorporated and has its place of business in the State of California.

B. AFB is a national non – profit whose mission is to eliminate the inequities faced by the more than ten million blind and visually impaired persons in the United States. Among other things, AFB is: the leading publisher of professional materials on blindness and low vision through its publishing arm, AFB Press; a pioneer in the development of Talking Books; a national advocate representing the interests of blind or visually impaired people before Congress and government agencies; and home to the Helen Keller Archives.

C. Staples owns and operates retail stores in Massachusetts, California and other states across the United States.

D. Claimants contend that they and their respective boards, staff, members and clients, and other blind and visually – impaired persons, have been, are being, and continue to be denied full access to the services provided by retail establishments and are therefore being discriminated against due to alleged inaccessibility of certain Point of Sale Devices (defined in Section 1.8 below) found in Staples Stores and alleged inaccessibility of www.Staples.com. Staples denies that it discriminates against blind and visually – impaired persons, including Claimants and their respective boards, staff, members and clients, in any way and specifically denies that it discriminates against such blind and visually – impaired persons due to alleged inaccessibility of certain Point of Sale Devices in Staples Stores and/or the alleged inaccessibility of www.Staples.com.

E. The Parties enter into the Full Agreement in order to resolve the dispute and to avoid the burden, expense, and risk of potential litigation. In entering into the Full Agreement, Staples does not admit, and specifically denies, that it has violated or failed to comply with any provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and the Title III implementing regulations, 28 C.F.R., Part 36, and any applicable laws of any state relating to accessibility for persons with disabilities to public accommodations, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable laws, regulations, or legal requirements. Neither the Full Agreement, nor any of its terms or provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession by Staples of any such violation or failure to comply with any applicable law. Neither the Full Agreement nor any of its terms and provisions shall be offered or received as evidence for any purpose whatsoever against Staples in any action or proceeding, other than a proceeding to enforce the terms of the Full Agreement.

NOW, THEREFORE, the Parties hereby agree to the following provisions:

1. Definitions.

As used in the Full Agreement, the following terms shall be as defined below:

1.1 Access Laws means the Americans with Disabilities Act (as defined below) and any applicable laws of any state, county or municipality relating to accessibility for persons with disabilities to places of public accommodation, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable disability laws, regulations, or legal requirements, including, without limitation, California Civil Code §§ 51, et seq. and 54, et seq., California Financial Code § 13082, California Health & Safety § 19955, and Title 24 of the California Code of Regulations and Massachusetts Public Accommodations Law, G.L. c.272, § 98, and Amendment Article 114 to the Massachusetts Constitution.

1.2 Americans with Disabilities Act or ADA means the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and the Title III implementing regulations, 28 C.F.R., Part 36.

1.3 Back End Checkout Counter means the counter at the back of some Staples Stores where a POS Device is placed and which is utilized by Staples employees to assist customers in paying for products or services.

1.4 Copy Center Counter means a counter that is separate from a Front End or Back End Checkout Counter where a POS Device is placed and which is utilized by Staples employees to assist customers in paying for products or services available at the Copy Center.

1.5 Counsel means Goldstein, Demchak, Baller, Borgen and Dardarian, The Law Office of Lainey Feingold, and the attorneys practicing law therein.

1.6 Effective Date means December 31, 2008.

1.7 Existing Staples Store means a Staples store that is open to the public on December 31, 2008.

1.8 Front End Checkout Counter means the counter at the front of a Staples Store where a POS Device is placed and which is utilized by Staples employees to assist customers in paying for products or services.

1.9 Point of Sale Device Function, or Function means a task related to payment for purchases that can be performed by the customer through the Point of Sale Device.

1.10 Point of Sale Device or POS Device means a device used by a customer at a point of purchase that allows the customer to pay for items with a debit, credit or other electronic funds card. POS Device does not include other equipment that may be used by a customer in conjunction with the Device to scan, price, or weigh products.

1.11 Tactile Keypad means a number keypad that is part of a unit separate from the Point of Sale Device but which is either snapped onto or plugged into a Point of Sale Device and has the following features: Each key (button) is tactually discernable from surrounding surfaces and adjacent keys; Numeric keys are arranged in a 12 – key ascending telephone keypad layout; the number five key is tactually distinct from the other keys by means of a raised dot; Function keys have contrasting colors, as follows: (i) Enter/ Accept (green key); (ii) Cancel (red key); and (iii) Correct / Clear (yellow key). Claimants agree that the Hypercom overlay bearing model number 3010, and the Hypercom PIN pad bearing model number P1310 meet these requirements. A Tactile Keypad may be used to perform the following Functions: input, correct, cancel and enter PIN, telephone number, other numeric information, and cash – back amounts.

1.12 New Staples Store means a Staples store that is first opened to the public after December 31, 2008.

1.13 Next Generation POS Device means the POS Device that will replace the POS Devices that exist in Staples Stores as of the Effective Date. Any such device will include an integrated or permanently affixed Tactile Keypad, have raised tactile markings on the Function keys, as follows: Enter/ Accept (green key with a raised circle); (ii) Cancel (red key with a raised X); and (iii) Correct / Clear (yellow key with a raised backward arrow), and provide at least the same level of functionality for customers with visual impairments as provided by the Tactile Keypad.

1.14 Personal Identification Number, or PIN means a unique numerical code used by individual customers that must be entered into a POS Device before conducting certain transactions on the POS Device.

1.15 Staples Store(s) means retail stores owned and operated by Staples in the United States.

2. Duration and Geographic Scope of Agreement.

The Full Agreement shall apply to Staples Stores in every State in the United States. The terms of the Full Agreement shall remain in effect from the Effective Date until September 30, 2010.

3. Provisions Regarding Tactile Keypads and Point of Sale Devices.

3.1 Installation of Tactile Keypads in Staples Stores in California.

Staples will permanently affix Tactile Keypads on all POS Devices in all Existing Staples Stores in California no later than December 31, 2009. Staples will permanently affix Tactile Keypads on all POS Devices in all New Staples Stores in California prior to the date on which those stores are opened to the public.

3.2 Schedule for Installing Tactile Keypads in Staples Stores Outside of California.

3.2.1 Commencing in February 2009 and completing by no later than September 30, 2009, Staples will provide Tactile Keypads as designated in Section 3.3 in 25% of Existing and New Staples Stores. All Staples Stores in Massachusetts will be included within the 25% of Stores covered by this section 3.2.1.

3.2.2 By no later than April 30, 2010, Staples will provide Tactile Keypads as designated in Section 3.3 in 100% of Existing and New Staples Stores.

3.3 Locations of Tactile Keypads in Staples Stores Outside of California.

The Tactile Keypads installed in each Staples Store pursuant to Section 3.2 shall be placed in the Stores as follows:

3.3.1 In Staples Stores without a Back End Checkout Counter, one Tactile Keypad shall be installed at one POS Device at the Front End Checkout Counter and one Tactile Keypad shall be installed at the POS Device at the Copy Center Counter. Subject to Section 3.5 herein, each Tactile Keypad described in this section, if not permanently affixed to the POS Device, shall be kept in a designated, labeled compartment or drawer at the Counter with the POS Devices, such that the cashier does not need to leave the POS Device to obtain the Tactile Keypad at the designated location. Whenever possible, the Tactile Keypad installed at the Front End Checkout Counter will be installed on the POS Device nearest to the exit door.

3.3.2 In all Staples Stores with a Back End Checkout Counter, one Tactile Keypad shall be installed at one POS Device at the Front End Checkout Counter; one Tactile Keypad shall be installed at one POS Device at the Back End Checkout Counter; and one Tactile Keypad shall be installed at the POS Device at the Copy Center Counter. Subject to Section 3.5 herein, the Tactile Keypads described in this section, if not permanently affixed to the POS Device, shall be kept in a designated, labeled compartment or drawer at the Counter with the POS Devices, such that the cashier does not need to leave the POS Device to obtain the Tactile Keypad at the designated location. Whenever possible, the Tactile Keypads installed at the Front End Checkout Counter will be installed on the POS Devices located nearest to the exit door.

3.4 Signature Block.

If customers are required to sign directly on the Point of Sale Terminal in order to complete a transaction, the terminal screen shall have no virtual function keys below the signature line.

3.5 Maintenance of Tactile Keypads.

Staples will use its best efforts to maintain all Tactile Keypads installed pursuant to this Agreement in operable, working condition except for isolated or temporary interruptions in service due to maintenance or repairs.

3.6 Installation Information to Claimants.

No later than 30 days after the dates set forth in Sections 3.1 and 3.2 herein, Staples will provide written confirmation to Claimants that the required Tactile Keypads have been installed. The confirmation provided in connection with Sections 3.2.1 and 3.2.2 will also include the locations of Staples Stores at which Tactile Keypads have been installed during the reporting period.

4. Provisions Regarding Next Generation POS Devices.

Staples will offer Claimants the opportunity to test and provide feedback on any Next Generation Device under consideration by Staples during the Term of this Agreement, prior to any final decision being made by Staples regarding the Next Generation Device. Claimants shall provide any feedback within fourteen days of their testing. Staples will consider in good faith the feedback provided by Claimants but will not be in breach of this Agreement if Staples does not incorporate the feedback. Staples will retain the right to decide the type and nature of the Next Generation POS Device.

5. Training of Staples Personnel.

5.1 On or before the date on which the Tactile Keypads are installed pursuant to this Agreement, Staples will modify its current training materials to include instruction to its managers and sales associates regarding: (i) the installation and location of Tactile Keypads; (ii) the reason blind and visually impaired Staples customers need the devices; (iii) the manner in which blind Staples customers use the devices; and (iv) guidelines for appropriate interactions with visually impaired customers using the Tactile Keypads. Additionally, Staples will provide all its Stores with an easy to use reference guide to serve as a “refresher” to the training. Appropriate store personnel will be trained to include as part of their daily store closing procedures ensuring that the Tactile Devices, if not affixed to POS Devices, are properly stored in their designated compartments or drawers. Staples will also instruct its district managers to conduct a monthly audit to ensure that the Tactile Devices, if not affixed to POS Devices, are properly stored in their designated compartments or drawers.

5.2 Staples will provide Claimants with a copy of the training materials prior to their being finalized. Review and distribution of the proprietary training material is to be limited to Claimants and their attorneys only for purposes of this dispute. All training material will be returned to Staples. Staples will consider the feedback provided by Claimants, but Staples retains full discretion over all matters relating to the training materials, including their form, content, and implementation.

5.3 All Staples managers and sales associates will receive the above – referenced training prior to the date on which the Tactile Keypads are installed in their respective stores.

6. Provisions Regarding Accessibility of www.Staples.com.

6.1 Staples will continue to use good faith efforts to ensure that all pages of www.Staples.com will substantially comply with the Priority One and Two checkpoints of the Web Content Accessibility Guidelines (hereafter “WCAG” or “Guidelines”) by no later than June 30, 2009. The Parties recognize that some Priority One or Two checkpoints address features or design elements that may not be used on www.Staples.com and in such circumstances compliance with those checkpoints is not required.

6.2 To the extent Staples hires contractors or vendors for website development and design work on www.Staples.com, it will make a good faith effort to locate and select contractors and vendors that are able to comply with the Guidelines.

6.3 CAPTCHA

6.3.1 If any Completely Automated Public Turing Test to Tell Computers and Humans Apart or similar visual or textual Turing or reverse – Turing verification test (referred herein as “CAPTCHA”) is used on www.staples.com, Staples will incorporate alternative security measures that are usable by Persons with Visual Impairments.

6.3.2 Testing of Proposed Alternatives to Visual Verifications. If, after the Effective Date, Staples plans to continue using any security measure that includes a CAPTCHA on www.staples.com, Staples will provide a method for Claimants’ representatives to test the alternative security measure to ensure that it is usable by Persons with Visual Impairments. Such testing will occur no later than April 30, 2009 and Staples will give good faith consideration to all feedback provided by Claimants’ representatives, provided that such feedback is provided within fifteen (15) days of the testing. Any disagreements regarding this feedback will be treated as a dispute subject to the terms of the dispute resolution provisions of Section 8 of this Agreement.

6.4 Third – Party Content.

The Parties recognize that there may be certain content on www.Staples.com that is not written or controlled by Staples (”Third – Party Content”). Staples’s only obligations under this Agreement with respect to Third – Party Content are the following:

6.4.1 By no later than March 1, 2009, Staples will request in writing that third parties supplying web – content to www.Staples.com voluntarily bring their content into conformance with the Priority One and Two Checkpoints of WCAG 1.0 to the extent applicable.

6.4.2 If, on or after the Effective Date, Staples issues requests for proposals or enters into contracts for development or inclusion of Third – Party Content on www.Staples.com, Staples will include a requirement that the third party make good faith efforts to comply with the Guidelines in all such requests for proposals and vendor contracts.

6.5 No later than April 30, 2009, Staples will provide Claimants with written confirmation that it has met the requirements of Section 6.1 of this Agreement.

6.6 Changes to WCAG 1.0.

If WCAG 1.0 is superseded by a later version, such as the Web Content Accessibility Guidelines 2.0 Working Draft (”Version 2.0?) currently under development, Staples will have the option of complying with either Version 1.0 or Version 2.0. If Version 2.0 is selected, Staples will meet conformance level AA.

6.7 Accessibility Information.

Staples will post information on its website, linked from the homepage, describing its efforts to comply with the Guidelines. Staples will provide a method by which users can notify the company about web accessibility concerns. Staples will notify visitors to www.Staples.com when they are linking to Third – Party Content, as that term is used herein.

7. Joint Press Release.

The Claimants and Staples may jointly issue a press release announcing the terms of this Agreement. If the Parties cannot agree on the language of a joint press release, either party may issue its own release provided that it is shared with the other Parties at least three business days prior to issuance and provided that the release is consistent with the terms of this agreement and reflects the collaborative method in which the Parties’ Dispute was resolved.

8. Procedures in the Event of Disputes.

8.1 Notice of Non – Compliance.

If a Party believes that the other Party has not complied with any provision of the Full Agreement, that party shall provide the other Party with Notice of Non – compliance containing the following information:

8.1.1 the alleged act of non – compliance;

8.1.2 a reference to the specific provision(s) of the Settlement Agreement or Confidential Addendum that are involved;

8.1.3 a statement of the remedial action sought by the initiating party;

8.1.4 a brief statement of the specific facts, circumstances and legal argument supporting the position of the initiating party.

8.2 Response.

Within forty – five (45) days of receipt of a Notice provided pursuant to Section 8.1, the non – initiating Party shall respond to the initiating Party in writing.

8.3 Meet and Confer.

Within two weeks after the response described above, the Parties shall informally meet and confer and attempt to resolve the issues raised in the Notice.

8.4 Submission to Mediation/Binding Arbitration.

8.4.1 If the matters raised in a Notice provided pursuant to Section 8.1 are not resolved within forty – five (45) days of the initial meet and confer required by Section 8.3, either party may submit the unresolved matters to nonbinding mediation before a mediator affiliated with JAMS, or such other mediator as the Parties may jointly agree to use.

If the dispute is not settled in mediation, it shall be submitted to binding arbitration before an arbitrator affiliated with JAMS. The arbitration hearing shall be conducted, in accordance with the JAMS Streamlined Arbitration Rules & Procedures. However, those Rules will be modified as necessary to ensure that the hearing is held as soon as practicable after the submission to arbitration, and that a written decision on the matter is rendered within sixty (60) days of the last hearing date.

9. Notice or Communication to Parties.

Any notice or communication required or permitted to be given to the Parties hereunder shall be given in writing by email and United States mail, addressed as follows:

To Claimants:

Linda M. Dardarian

c/o Goldstein, Demchak, Baller, Borgen & Dardarian

300 Lakeside Drive, Suite 1000

Oakland, CA 94612

[email address omitted]

Lainey Feingold

Law Office of Lainey Feingold

1524 Scenic Avenue

Berkeley, CA 94708

[email address omitted]

To Staples:

Cindy Westervelt

Vice President, Associate General Counsel

Staples, Inc.

500 Staples Drive

2 West

Framingham, MA 01702

[email address omitted]

10. Feedback from Claimants.

On a date during the third quarter of 2009 that is mutually agreed to by the Parties, Staples will meet by telephone or in person with representatives of Claimants to elicit input and receive feedback regarding the implementation of this Agreement and any other issue regarding technology used by Staples customers and its effect on customers who are blind or visually impaired. Staples will also make a good faith effort to arrange and participate in a meeting by telephone or in person between Claimants and the manufacturer of Staples’ POS Devices and Tactile Keypads to discuss the inclusion of tactile markings on the Function keys of such devices.

11. Modification in Writing.

No modification of the Full Agreement shall be effective unless in writing and signed by authorized representatives of all Parties.

12. No Other Representations.

Each Party to the Full Agreement warrants that he, she or it is acting upon his, her or its independent judgment and upon the advice of his, her or its own counsel and not in reliance upon any warranty or representation, express or implied, of any nature or kind by any other Party, other than the warranties and representations expressly made in the Full Agreement.

13. Full Agreement Has Been Read.

The Full Agreement has been carefully read by each of the Parties, or their responsible officers, and its contents are known and understood by each of the Parties. The Full Agreement is signed freely by each party executing it.

14. No Assignment.

No Party to the Full Agreement has heretofore assigned, transferred or granted, or purported to assign, transfer or grant, any of the claims, demands, or cause or causes of action disposed of by the Full Agreement.

15. Agreement Binding on Assigns And Successors.

The Full Agreement shall bind any assigns and successors of the Parties.

16. Force Majeure.

The performance of Staples under this Full Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, or unavailability of operable parts, equipment or materials through normal supply sources. If Staples seeks to invoke this Section, it shall notify Counsel in writing as soon as reasonably possible, specifying the particular action that could not be performed and the specific reason for the non – performance. Counsel and Staples will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to Section 8 of this Agreement.

17. No Admission of Liability.

In entering into the Full Agreement, Staples does not admit, and specifically denies, that it has violated or failed to comply with any Access Laws.

18. Authority.

The persons executing the Full Agreement each represent and warrant that he or she has the authority to enter into the Full Agreement, and to resolve the matters set forth in the Full Agreement, on behalf of the Party for whom he or she is executing the Full Agreement, and that no further approval is necessary in order for the Full Agreement to be binding on the Party for whom he or she is executing.

19. Integrated Agreement.

The Full Agreement constitutes the entire agreement relating to the subject matters addressed therein.

20. Rules of Construction.

Each party and its legal counsel have reviewed and participated in the drafting of the Full Agreement; and any rule of construction to the effect that ambiguities are construed against the drafting party shall not apply in the interpretation or construction of the Full Agreement. Section titles used herein are intended for reference purposes only and are not to be construed as part of the Full Agreement. The Recitals are integral to the construction and interpretation of the Full Agreement and are therefore incorporated into the Full Agreement in their entirety.

21. Triplicate Originals/Execution in Counterparts.

All Parties and their respective counsel shall sign three copies of this document and each such copy shall be considered an original. This document may be executed in counterparts.

PARTIES

STAPLES, INC.

AMERICAN COUNCIL OF THE BLIND

By: Melanie Brunson, Executive Director

AMERICAN FOUNDATION FOR THE BLIND

By: Paul Schroeder, Vice President, Programs & Policy Group

CALIFORNIA COUNCIL OF THE BLIND

By: Jeff Thom, President

BAY STATE COUNCIL OF THE BLIND

By: Bob Hachey, President

APPROVED AS TO FORM:

DLA PIPER LLP (US)

By: Merrill F. (Rick) Storms, Jr., Esq.

GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN

By: Linda M. Dardarian, Esq.

LAW OFFICE OF LAINEY FEINGOLD

By: Lainey Feingold, Esq.

Simplified Summary: This document is the legal agreement signed by Staples with the American Council of the Blind (ACB), the American Foundation for the Blind and the California Council of the Blind (CCB). Staples agreed to make changes so blind people could use payment cards and enter their own PIN. Staples agreed to add keys to their payment devices that a person can feel. Every store in the U.S. will have a keypad. Staples also agreed to make changes to its website. The changes will make it easier for people with disabilities to use the site. Lainey Feingold and Linda Dardarian were the lawyers for the blind community. No lawsuit was filed. Instead, a formal process known as Structured Negotiations was used. [Back to Agreement]

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Filed under Point of Sale Settlements, Web Accessibility Settlements on Apr 23rd, 2009

APPENDIX 4 – SETTLEMENT AGREEMENTS ON ELECTRONIC KIOSKS

(Note: See also the settlement agreements with Staples and CVS respectively in Appendix 3, which cover both website accessibility and point of sale technology)

Dollar general stores settlement agreement

Dollar General Settlement Agreement

The Dollar General Point of Sale (POS) Agreement was negotiated by Lainey Feingold and co-counsel Linda Dardarian using Structured Negotiations on behalf of the American Council of the Blind (ACB), the American Foundation for the Blind (AFB), and blind Dollar General shopper Lela Behee. In this agreement, Dollar General has agreed that all of its more than 8,000 stores across the United States will have tactile point of sale devices so that blind and visually impaired customers can independently enter their PIN and other confidential information. The devices will be installed in all stores over the next fifteen months.

Simplified Summary of this Document

SETTLEMENT AGREEMENT

This Settlement Agreement (hereinafter “Settlement Agreement”) and the related document entitled Confidential Addendum to Settlement Agreement (collectively referred to herein as the “Full Agreement”) are entered into as of the Effective Date, as defined below in Section 1.6, by and between the following parties: American Council of the Blind (”ACB”), American Foundation for the Blind (”AFB”), and Lela Behee (collectively, the “Claimants”), and Dollar General Corporation (”Dollar General”). Claimants and Dollar General are at times referred to collectively herein as the “Parties.”

RECITALS

The Full Agreement is based on the following facts:

A. ACB, a non-profit corporation that provides advocacy services in the United States on behalf of individuals who are blind or have visual impairments, is dedicated to promoting the full integration of persons who are blind or have visual impairments into all aspects of society, and provides information to the general public about the accomplishments, needs and contributions of persons who are blind or visually-impaired. Among ACB’s board, staff and members, and those on whose behalf they advocate and provide services, are many individuals with vision disabilities within the meaning of state and federal law who have shopped and continue to shop at Dollar General Stores throughout the United States. ACB is incorporated and has its principle place of business in Washington, D.C., and has a state affiliate in every state in the U.S.

B. AFB is a national non-profit whose mission is to eliminate the inequities faced by the more than ten million blind and visually impaired persons in the United States. Among other things, AFB is: the leading publisher of professional materials on blindness and low vision through its publishing arm, AFB Press; a pioneer in the development of Talking Books; a national advocate representing the interests of blind or visually impaired people before Congress and government agencies; and home to the Helen Keller Archives. Among AFB’s board, staff and those on whose behalf it advocates and provides services, are many individuals with vision disabilities within the meaning of state and federal law and who have shopped and continue to shop at Dollar General Stores throughout the United States. AFB is incorporated and has its principle place of business in New York State, and has offices in states where Dollar General does business, including Texas and West Virginia.

C. Claimant Lela Behee is a resident of Colorado City, Texas, is blind, and is a person with a disability within the meaning of the Americans with Disabilities Act and the laws of the State of Texas. Claimant Behee has shopped at Dollar General, including the Dollar General Store in Colorado City, Texas.

D. Dollar General, through its subsidiaries and related companies, operates retail stores in Texas and other states across the United States, including stores operating under the name “Dollar General” and “Dollar General Market” (collectively, “Dollar General Stores”).

E. Claimants contend that they, the respective boards, staff, members and clients of ACB and AFB, and other blind and visually-impaired persons, have been, are being, and continue to be denied full access to the services provided by retail establishments and are therefore being discriminated against due to alleged inaccessibility of certain Point of Sale (POS) Devices (defined in Section 1.12 below) found in Dollar General Stores (the “Claim(s)”). Dollar General denies that it discriminates against blind and visually-impaired persons, including Claimants and the respective boards, staff, members and clients of ACB and AFB, in any way and specifically denies that it discriminates against such blind and visually-impaired persons due to alleged inaccessibility of certain POS Devices in Dollar General Stores.

F. The Parties enter into the Full Agreement in order to resolve the Claims and to avoid the burden, expense, and risk of potential litigation. In entering into the Full Agreement, Dollar General does not admit, and specifically denies, that it has violated or failed to comply with any provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and the Title III implementing regulations, 28 C.F.R., Part 36, and any applicable laws of any state relating to accessibility for persons with disabilities to public accommodations, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable laws, regulations, or legal requirements. Neither the Full Agreement, nor any of its terms or provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession by Dollar General of any such violation or failure to comply with any applicable law. Neither the Full Agreement nor any of its terms and provisions shall be offered or received as evidence for any purpose whatsoever against Dollar General in any action or proceeding, other than a proceeding to enforce the terms of the Full Agreement.

NOW, THEREFORE, the Parties hereby agree to the following provisions:

1. Definitions.

As used in the Full Agreement, the following terms shall be as defined below:

1.1

Access Laws means the Americans with Disabilities Act (as defined below) and any applicable laws of any state, county or municipality relating to accessibility for persons with disabilities to places of public accommodation, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable disability laws, regulations, or legal requirements, including, without limitation, the Texas Human Resources Code, Section 121.003, et seq.

1.2

Americans with Disabilities Act or ADA means the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and the Title III implementing regulations, 28 C.F.R., Part 36.

1.3

Ancillary Raised Button Keypad means a Raised Button Keypad that is part of a unit separate from the Point of Sale (POS) Device but which is plugged into a POS Device. An Ancillary Raised Button Keypad may be used to perform the following Functions, to the extent that those Functions may be performed by customers at a Dollar General store: input, correct, cancel and enter PIN, telephone number and cash-back amounts. The Ingenico 3010 is an example of an Ancillary Raised Button Keypad.

1.4

Claims means the contention by Claimants, and the respective boards, staff, members and clients of ACB and AFB, and other blind and visually-impaired persons, that Claimants are being, have been and continue to be discriminated against due to alleged inaccessibility of certain POS Devices in Dollar General Stores pursuant to applicable Access Laws.

1.5

Counsel means Goldstein, Demchak, Baller, Borgen and Dardarian, The Law Office of Lainey Feingold, and the attorneys practicing law therein.

1.6

Dollar General Stores means Traditional Dollar General Stores and Dollar General Market Stores operated by Dollar General in the United States.

1.7

Effective Date means October 15, 2008.

1.8

Existing Dollar General Store means a Dollar General Store that was open to the public on or before October 15, 2008.

1.9

New Dollar General Store means a Dollar General Store that is first opened to the public after October 15, 2008.

1.10

Next Generation POS Device means the POS Device that will replace any Flat Screen Ingenico POS Device installed in Dollar General Stores as of the Effective Date. Any such device will have an integrated Raised Button Keypad and will include at least the same level of functionality provided by the Ancillary Raised Button Keypad. The Ingenico 6780 is an example of a Next Generation POS Device.

1.11

Personal Identification Number, or PIN means a unique numerical code used by individual customers that must be entered into a POS Device before conducting certain transactions on the POS Device.

1.12

POS Device Function, or Function means a task related to payment for purchases that can be performed by the customer through the POS Device.

1.13

Point of Sale or POS Device means a device used by a customer at a point of purchase that is staffed by a Dollar General employee and that allows the customer to pay for items with a debit, credit or other electronic funds card. POS Device does not include other equipment that may be used by a customer in conjunction with the Device to scan, price, or weigh products and such other equipment is expressly excluded from the terms and requirements and releases of this Agreement.

1.14

Raised Button Keypad means a number keypad on which each key (button) is tactually discernable from surrounding surfaces and adjacent keys. Numeric keys shall be arranged in a 12-key ascending telephone keypad layout. The number five key shall be tactually distinct from the other keys by means of a raised dot. The following function keys on the Raised Button Keypad shall be the color indicated, shall have contrasting text, and shall have raised tactile markings: Enter/Accept (green key with raised circle), Cancel (red key with raised “x”) and Correct (yellow key with raised backward arrow or slanted line).

1.15

Staffed Checkout Aisle means any checkout aisle (including a customer service desk, if any, and any counter that may use a POS Device) where a POS Device is placed and which is staffed by a Dollar General employee to assist customers in paying for products or services.

1.16

Traditional Dollar General Store(s) means non-Dollar General Market Stores.

2. Duration and Geographic Scope of Agreement.

The Full Agreement shall apply to Dollar General Stores in every State in the United States in which Dollar General operates Dollar General Stores. The terms of the Full Agreement shall remain in effect from the Effective Date until March 31, 2010.

3. Provisions Regarding Ancillary Raised Button Keypads and Next Generation POS Devices.

3.1 Existing Dollar General Stores.

3.1.1 Traditional Dollar General Stores: By no later than January 31, 2010, Dollar General will install at least one Ancillary Raised Button Keypad or Next Generation POS Device, as designated in Section 3.2, in each Existing Traditional Dollar General Store. By no later than February 28, 2009, Dollar General will begin the installations described in this Section 3.1.1.

3.1.2 Dollar General Market Stores: By no later than January 31, 2010, Dollar General will install at least three Ancillary Raised Button Keypads or Next Generation POS Devices, as designated in Section 3.2, in each Existing Dollar General Market Store. By no later than February 28, 2009, Dollar General will begin the installations described in this Section 3.1.2.

3.1.3 Dollar General Store in Colorado City, Texas: No later than August 15, 2008, Dollar General will install at least one Next Generation POS Device or Ancillary Raised Button Keypad, as designated in Section 3.2, in the Dollar General Store in Colorado City, Texas. Dollar General also has agreed to install at least one Next Generation POS Device or Ancillary Raised Button Keypad in Dollar General stores in two surrounding cities, including Sweetwater and Snyder, Texas.

3.2 Locations of Ancillary Raised Button Keypads and Next Generation POS Devices.

In Dollar General Stores in which some but not all POS Devices either have an Ancillary Raised Button Keypad or are Next Generation POS Devices, Dollar General agrees that at least one open Staffed Checkout Aisle will have either an Ancillary Raised Button Keypad or Next Generation POS Device.

3.3 New Dollar General Stores.

All POS Devices in New Dollar General Stores will be Next Generation POS Devices as of the date the Store is open to the public.

3.4 Newly Purchased POS Devices.

Except as provided herein regarding the purchase of Ancillary Raised Button Keypads, all POS Devices that Dollar General purchases after the Effective Date for installation in any Dollar General Store shall be Next Generation POS Devices.

3.5 Rollout Information to Claimants.

On April 15, 2009 and October 15, 2009, Dollar General will provide Claimants with a written list of the Dollar General Store addresses in which the Ancillary Raised Button Keypads and Next Generation POS Devices or have been installed. No later than January 31, 2010, Dollar General will confirm that Ancillary Raised Button Keypads and Next Generation POS Devices have been installed in accordance with Sections 3.1.1 and 3.1.2 herein.

3.6 Maintenance of Next Generation POS Devices and Ancillary Raised Button Keypads.

Dollar General will use its best efforts to maintain all Ancillary Raised Button Keypads and Next Generation POS Devices installed pursuant to this Agreement in operable, working condition except for isolated or temporary interruptions in service due to maintenance or repairs.

3.7 Testing of Ancillary Raised Button Keypads and Next Generation POS Devices.

Dollar General has allowed and will allow Claimants to test and provide feedback on the Ancillary Raised Button Keypad and Next Generation POS Device to be installed pursuant to this Agreement. Claimants will provide Dollar General with reasonable notice of their desire to perform testing, and all testing will be performed in a manner calculated not to interfere with the conduct of a store’s operations. Claimants shall provide any feedback within fourteen days of their testing. Dollar General will consider in good faith all comments, provided they are consistent with this Agreement.

4. Training of Dollar General Personnel.

Dollar General will develop training materials and will instruct or train appropriate personnel regarding the roll-out of Ancillary Raised Button Keypads and Next Generation POS Devices; the locations of these Devices within the Stores; and guidelines for appropriate interactions with visually impaired customers using the Ancillary Raised Button Keypads and Next Generation POS Devices. Dollar General will provide Claimants with a copy of the training materials prior to their implementation. Review and distribution of the proprietary training material is to be limited to Claimants and their attorneys only for purposes of this dispute. Dollar General will consider the feedback provided by Claimants and use good faith efforts to incorporate applicable feedback provided that such feedback is submitted in a timely manner and is consistent with the requirements imposed by this Agreement. The details of the delivery methods for such training materials will be in the sole discretion of Dollar General. Instruction or training pursuant to this section will occur in a timely manner relative to the installation of the Ancillary Raised Button Keypads and Next Generation POS Devices in the Stores.

5. Signage.

In any Dollar General Store where at least one but not all POS Devices either have Ancillary Raised Button Keypads or are Next Generation POS Devices, Dollar General will post a symbol at or in reasonable proximity to each check out aisle where the Ancillary Raised Button Keypads or Next Generation POS Devices have been installed to indicate the availability of the unit at that check out aisle.

6. Joint Press Release.

The Claimants and Dollar General will jointly issue a press release in the form attached hereto.

7. Procedures in the Event of Disputes.

7.1 Notice of Non-Compliance.

If a party believes that the other party has not complied with any provision of the Full Agreement, that party shall provide the other party with Notice of Non-compliance containing the following information:

7.1.1 the alleged act of non-compliance;

7.1.2 a reference to the specific provision(s) of the Settlement Agreement or Confidential Addendum that are involved;

7.1.3 a statement of the remedial action sought by the initiating party;

7.1.4 a brief statement of the specific facts, circumstances and legal argument supporting the position of the initiating party.

7.2 Response.

Within thirty (30) days of receipt of a Notice provided pursuant to Section 7.1, the non-initiating party shall respond to the initiating party in writing.

7.3 Meet and Confer.

Within two weeks after the response described above, the Parties shall informally meet and confer and attempt to resolve the issues raised in the Notice. Such meeting may take place telephonically.

7.4 Submission to Mediation/Binding Arbitration.

7.4.1 If the matters raised in a Notice provided pursuant to Section 7.1 are not resolved within thirty (30) days of the initial meet and confer required by Section 7.3, either party may submit the unresolved matters to nonbinding mediation before a mediator affiliated with JAMS.

7.4.2 If the dispute is not settled in mediation, it shall be submitted to binding arbitration before an arbitrator affiliated with JAMS. The arbitration hearing shall be conducted, in accordance with the JAMS Streamlined Arbitration Rules & Procedures. However, those Rules will be modified as necessary to ensure that the hearing is held as soon as practicable after the submission to arbitration, and that a written decision on the matter is rendered within sixty (60) days of the last hearing date.

8. Notice or Communication to Parties.

Any notice or communication required or permitted to be given to the parties hereunder shall be given in writing by email or by certified United States mail, addressed as follows:

To Claimants:

Linda M. Dardarian

c/o Goldstein, Demchak, Baller, Borgen & Dardarian

300 Lakeside Drive, Suite 1000

Oakland, CA 94612

[email address omitted]

Lainey Feingold

Law Office of Lainey Feingold

1524 Scenic Avenue

Berkeley, CA 94708

[email address omitted]

To Dollar General:

Dollar General Corporation

C/o Susan S. Lanigan or Rhonda M. Taylor

100 Mission Ridge

Goodlettsville, TN 37072

[email address omitted]

9. Modification in Writing.

No modification of the Full Agreement shall be effective unless in writing and signed by authorized representatives of all Parties.

10. No Other Representations.

Each party to the Full Agreement warrants that he, she or it is acting upon his, her or its independent judgment and upon the advice of his, her or its own counsel and not in reliance upon any warranty or representation, express or implied, of any nature or kind by any other party, other than the warranties and representations expressly made in the Full Agreement.

11. Full Agreement Has Been Read.

12. No Assignment.

No party to the Full Agreement has heretofore assigned, transferred or granted, or purported to assign, transfer or grant, any of the claims, demands, or cause or causes of action disposed of by the Full Agreement.

13. Agreement Binding on Assigns and Successors.

The Full Agreement shall bind any assigns and successors of the Parties.

14. Force Majeure.

The performance of Dollar General under this Settlement Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, or unavailability of operable parts, equipment or materials through normal supply sources. If Dollar General seeks to invoke this Section, it shall notify Counsel in writing as soon as reasonably possible, specifying the particular action that could not be performed and the specific reason for the non-performance. Counsel and Dollar General will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to Section 7.4 of this Settlement Agreement.

15. No Admission of Liability.

In entering into the Full Agreement, Dollar General does not admit, and specifically denies, that it has violated or failed to comply with any Access Laws.

16. Authority.

17. Integrated Agreement.

The Full Agreement constitutes the entire agreement relating to the subject matters addressed therein.

18. Rules of Construction.

19. Triplicate Originals/Execution in Counterparts.

All Parties and their respective counsel shall sign three copies of this document and each such copy shall be considered an original. This document may be executed in counterparts.

PARTIES

DOLLAR GENERAL CORPORATION

AMERICAN COUNCIL OF THE BLIND

By: Melanie Brunson, Executive Director

AMERICAN FOUNDATION FOR THE BLIND

By: Paul Shroeder, Vice President, Programs & Policy Group

LELA BEHEE

APPROVED AS TO FORM:

GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN

By: Linda M. Dardarian, Esq.

LAW OFFICE OF LAINEY FEINGOLD

By: Lainey Feingold, Esq.

Simplified Summary: This document is the agreement between Dollar General and blind groups. In the agreement, Dollar General agreed to put equipment in every store in the U.S. so that blind people can enter their PINs (secret codes) when they use their debit cards. Dollar General will install keypads in more than 8,000 stores by January, 2010. The keypads will be like telephone keypads with a raised dot on the five key. The agreement was signed with the American Council of the Blind (ACB), the American Foundation for the Blind and a blind Dollar General shopper. Lainey and Linda Dardarian were the lawyers for the blind community. No lawsuit was filed. Instead, formal talks called Structured Negotiations were used.

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Filed under Settlement Agreements, Point of Sale Settlements on Dec 10th, 2008

Trader joe’s settlement agreement

Trader Joe’s Point of Sale Agreement and Amendment

The Trader Joe’s Point of Sale Agreement posted here was negotiated by Lainey and Linda Dardarian using Structured Negotiations on behalf of the American Council of the Blind, the American Foundation for the Blind and the California Council of the Blind. In the Agreement, Trader Joe’s agreed to install tactile point of sale devices at all its stores in the United States. An amendment to this agreement was signed to provide additional time for Trader Joe’s to implement the agreement.

Simplified Summary of this Document

Settlement Agreement

This Settlement Agreement and the related document entitled Confidential Addendum to Settlement Agreement (collectively referred to herein as the “Full Agreement”) are entered into as of the Effective Date, as defined below in Section 1.5, by and between the following parties: American Council of the Blind (”ACB”), American Foundation for the Blind (”AFB”), and California Council of the Blind (”CCB”) (collectively, the “Claimants”), and Trader Joe’s Company, Inc. (”Trader Joe’s”). Claimants and Trader Joe’s are at times referred to collectively herein as the “Parties.”

Recitals

The Full Agreement is based on the following facts:

A. ACB, a non-profit corporation that provides advocacy services in the United States on behalf of individuals who are blind or have visual impairments, is dedicated to promoting the full integration of persons who are blind or have visual impairments into all aspects of society, and provides information to the general public about the accomplishments, needs and contributions of persons who are blind or visually-impaired. CCB is ACB’s California affiliate serving the needs of blind and visually-impaired persons throughout the State of California. Among ACB’s and CCB’s board, staff and members, and those on whose behalf they advocate and provide services, are many individuals with vision disabilities within the meaning of state and federal law who have shopped and continue to shop at Trader Joe’s stores throughout the United States. ACB is incorporated and has its place of business in Washington, D.C. CCB is incorporated and has its place of business in the State of California.

B. AFB is a national non-profit, whose mission is to eliminate the inequities faced by the more than ten million blind and visually-impaired persons in the United States. Among other things, AFB is: the leading publisher of professional materials on blindness and low vision through its publishing arm, AFB Press; a pioneer in the development of Talking Books; a national advocate representing the interests of blind or visually-impaired people before Congress and government agencies; and home to the Helen Keller Archives. Among AFB’s board, staff and those on whose behalf it advocates and provides services, are many individuals with vision disabilities within the meaning of state and federal law and who have shopped and continue to shop at Trader Joe’s stores throughout the United States.

C. Trader Joe’s operates retail grocery stores in California and other states across the United States.

D. Claimants contend that they and their respective boards, staff, members and clients, and other blind and visually-impaired persons, have been, are being, and continue to be denied full access to the services provided by retail establishments and are therefore being discriminated against due to alleged inaccessibility of certain Point of Sale (”POS”) Terminals (defined in Section 1.10 below) found in retail establishments throughout the United States, including in Trader Joe’s stores (the “Claim(s)”). Trader Joe’s denies that it discriminates against blind and visually-impaired persons, including Claimants and their respective boards, staff, members and clients, in any way and specifically denies that it discriminates against such blind and visually-impaired persons due to alleged inaccessibility of certain POS Terminals in the Trader Joe’s stores. Trader Joe’s contends that it does not and will not tolerate discrimination against its customers on the basis of disability, and that it values its disabled customers and treats them with the utmost respect.

E. The Parties enter into the Full Agreement in order to resolve the Claims and to avoid the burden, expense, and risk of potential litigation. In entering into the Full Agreement, Trader Joe’s does not admit, and specifically denies, that it has violated or failed to comply with any provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and the Title III implementing regulations, 28 C.F.R., Part 36, and any applicable laws of any state relating to accessibility for persons with disabilities to public accommodations, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable laws, regulations, or legal requirements. Neither the Full Agreement, nor any of its terms or provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession by Trader Joe’s of any such violation or failure to comply with any applicable law. The Full Agreement and its terms and provisions shall not be offered or received as evidence for any purpose whatsoever against Trader Joe’s in any action or proceeding, other than a proceeding to enforce the terms of the Full Agreement.

NOW, THEREFORE, the Parties hereby agree to the following provisions:

1. Definitions.

As used in the Full Agreement, the following terms shall be as defined below:

1.1.

Access Laws means the Americans with Disabilities Act (as defined below) and any applicable laws of any state, county or municipality relating to accessibility for persons with disabilities to places of public accommodation, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable disability laws, regulations, or legal requirements, including, without limitation, California Civil Code §§ 51 et seq. and 54 et seq., California Financial Code § 13082, California Health & Safety § 19955, and Title 24 of the California Code of Regulations.

1.2.

Americans with Disabilities Act or ADA means the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and the Title III implementing regulations, 28 C.F.R., Part 36.

1.3.

Claims means the contention by Claimants and their respective boards, staff, members and clients, and other blind and visually-impaired persons, that they are being, have been and continue to be discriminated against due to alleged inaccessibility of certain POS Terminals in Trader Joe’s stores pursuant to applicable Access Laws.

1.4.

Counsel means Goldstein, Demchak, Baller, Borgen and Dardarian, The Law Office of Elaine B. Feingold, and the attorneys practicing law therein.

1.5.

Effective Date means June 30, 2006.

1.6.

Equivalent Terminal means a POS Terminal that provides a visually-impaired user the same or greater level of privacy and ability to perform Functions set forth in Section 1.12, below, as provided with the POS Terminal with Integrated Tactually Discernable Keypad, and which can be rolled out pursuant to the schedules set forth in section 3 of this Agreement.

1.7.

Existing Trader Joe’s Store means a Trader Joe’s store that was open to the public on or before June 30, 2006.

1.8.

New Trader Joe’s Store means a Trader Joe’s store that is first opened to the public after June 30, 2006.

1.9.

Personal Identification Number, or PIN means a unique numerical code used to identify an individual that must be entered into a POS Terminal before conducting certain transactions on the POS Terminal.

1.10.

Point of Sale Terminal, or POS Terminal means a device used by a customer at a point of purchase that allows the customer to pay for items with a debit, credit or cash card. Point of Sale Terminal does not include other equipment that may be used by a customer in conjunction with the Terminal to scan, price, or weigh products.

1.11.

POS Terminal Function, or Function means a task related to payment for purchases that can be performed by the customer through the POS Terminal.

1.12.

POS Terminal with Integrated Tactually Discernable Keypad means a POS Terminal with a Tactually Discernable Keypad that is an integral part of the terminal, which may be used to perform the following Functions on the integrated keypad: input, correct, cancel and enter PIN and cash-back amounts; submit card data; submit signature; and any Functions that involve inputting, correcting, canceling or entering information that is personal or affects access to personal information or resources, to the extent such Functions are available to sighted persons using the unit. Additionally, if customers are required to sign directly on the Point of Sale Terminal, there shall be no virtual function keys below the signature line, and the signature line shall be on the lowest portion of the screen.

1.13.

Staffed Checkout Aisle means any checkout aisle (including a customer service desk, and any counter that may use POS Terminals) where a POS Terminal is placed and which is staffed by a Trader Joe’s employee (who may be assigned to multiple aisles simultaneously) to assist customers in paying for products or services.

1.14.

Tactually Discernable Keypad means a number keypad on which each key is tactually discernable from surrounding surfaces and adjacent keys. Numeric keys shall be arranged in a 12 key ascending telephone keypad layout. The number five key shall be tactually distinct from the other keys by means of a raised dot. The following function keys on the Tactually Discernable Keypad shall be to the right of the number keys: Enter (Accept), colored green and marked with a raised circle; Cancel, colored red and marked with a raised “X,” and Correct, colored yellow and marked with a raised left arrow. All text and numerals on all keys shall be colored to contrast with the key color.

2. Duration and Geographic Scope of Agreement.

The Full Agreement shall apply to Trader Joe’s stores in every State in the United States in which Trader Joe’s operates. The terms of the Full Agreement shall remain in effect from the Effective Date until December 31, 2008. The only obligations of either party that survive beyond December 31, 2008 are those described in Sections 4 and 6 of the Confidential Addendum, which shall at all times remain in effect and enforceable.

3. Provisions Regarding POS Terminals with Integrated Tactually Discernable Keypad.

3.1. Development and Testing.

3.1.1. Trader Joe’s has been, and currently is, engaged in the process of developing and testing a POS Terminal with Integrated Tactually Discernable Keypad for use in Trader Joe’s stores. Prior to the first Point of Sale Terminal with Integrated Tactually Discernible Keypad being placed in a Trader Joe’s store for use by customers, Trader Joe’s will meet with Claimants to demonstrate and test the Point of Sale Terminal with Integrated Tactually Discernible Keypad and to elicit input regarding the operation, usability and flow of the device. Trader Joe’s shall consider in good faith all written comments given by Claimants regarding the demonstration, provided that such comments and suggestions are consistent with this Agreement and the ADA, and provided further that such comments are communicated by Counsel in writing on behalf of the Claimants to Trader Joe’s within ten (10) days after the demonstration. Trader Joe’s shall provide Counsel with a specific response in writing regarding Trader Joe’s position on each such comment within ten (10) days thereafter. Claimants will participate in at least one further testing session to be conducted in a Trader Joe’s store on a Point of Sale Terminal with Integrated Tactually Discernible Keypad that is operational and being used by Trader Joe’s customers.

3.1.2. For thirty days, beginning no later than August 31, 2006, Trader Joe’s will install three (3) Point of Sale Terminals with Integrated Tactually Discernible Keypads for testing purposes in three (3) Trader Joe’s stores in California for a total of nine (9) units. Trader Joe’s will accept comments from blind and visually-impaired shoppers during this testing period regarding the terminals.

3.1.3. Assuming the testing performed pursuant to paragraph 3.1.2 above is successful, by no later than September 30, 2006, Trader Joe’s will install an additional three Point of Sale Terminals with Integrated Tactually Discernible Keypads in each of twelve (12) stores, for a total of thirty-six (36) additional terminals. The parties have agreed on the locations of these stores.

3.2. Initial Rollout to Existing Trader Joe’s Stores.

By no later than November 15, 2006, Trader Joe’s will install POS Terminals with Integrated Tactually Discernable Keypads in at least thirty-three percent of the Staffed Checkout Aisles in each Existing Trader Joe’s store in the United States and at each New Trader Joe’s Store. To the extent practicable, the POS Terminals with Integrated Tactually Discernable Keypads installed pursuant to this section shall be placed in at least the following aisles in each store as follows: one at the Express Aisle if the store has an Express Aisle, one at the first full service aisle closest to the entry door, and one at each aisle designated as wheelchair accessible.

3.3. Full Rollout of POS Terminals with Tactually Discernable Keypads in Trader Joe’s Stores.

On a date during the second quarter of 2007, to be determined by the Parties, the Parties shall begin negotiating in good faith regarding the schedule for installing POS Terminals with Integrated Tactually Discernable Keypads at all of the Staffed Checkout Aisles in all of the Trader Joe’s stores in the United States. Such negotiations shall continue for a period not to exceed sixty (60) days (Negotiation Period). If the Parties reach agreement on the installation schedule, that agreement will be memorialized in writing as a further Addendum to the Agreement. If the Parties have not reached agreement on the installation schedule, and if the Parties have not agreed to an extension of the Negotiation Period, this issue shall be submitted to binding arbitration pursuant to Section 5.4 of the Agreement.

3.4. Rollout Information to Claimants.

On December 15, 2006, Trader Joe’s will provide Counsel with written confirmation that POS Terminals with Integrated Tactually Discernible Keypads have been installed pursuant to the terms of Section 3.2.

3.5. Maintenance of POS Terminals with Integrated Tactually Discernable Keypads and Staffed Checkout Aisles.

For any stores where fewer than all of the Staffed Checkout Aisles have POS Terminals with Integrated Tactually Discernable Keypads (or Equivalent Terminals), Trader Joe’s will use its best efforts to maintain such terminals in operable, working condition except for isolated or temporary interruptions in service due to maintenance or repairs. Trader Joe’s will use its best efforts to ensure that aisle closures in such stores during off hours or made for the purpose of maintenance, training or other operational needs do not result in the complete absence of a Staffed Checkout Aisle with a functioning POS Terminal with Integrated Tactually Discernable Keypad.

3.6. Feedback from Claimants.

On a date during the first quarter of 2007 that is mutually agreed to by the Parties, and periodically thereafter as requested by Claimants, but not more than once each year during the term of this Agreement, Trader Joe’s will meet by telephone or in person with representatives of Claimants to elicit input and receive feedback regarding the implementation of this Agreement and any other issue regarding technology used by Trader Joe’s customers and its effect on customers who are blind or visually impaired.

4. Training of Trader Joe’s Personnel.

Trader Joe’s will develop a training program and train the appropriate personnel regarding, inter alia, the roll-out of POS Terminals with Integrated Tactually Discernable Keypads, protocols for complying with Section 3.5 above, and appropriate communications with visually-impaired customers regarding use of such terminals. The details of this training will be in the sole discretion of Trader Joe’s, but will include features to ensure that appropriate personnel are apprised (i) when POS Terminals with Integrated Tactually Discernable Keypads are introduced to Trader Joe’s stores, (ii) where the terminals are located within the store; (iii) how and when to direct visually-impaired customers to the terminals; (iv) the manner in which persons with visual impairments will use the terminals; and (v) generally how to provide effective service to customers with visual impairments. In addition, appropriate personnel will be trained to allow visually-impaired customers to sign a paper receipt instead of the POS terminal upon request by the customer. Training pursuant to this section will occur in a timely manner to ensure effective implementation of the provisions of the Full Agreement.

5. Procedures in the Event of Disputes.

5.1. Notice of Non-Compliance.

5.1.1. the alleged act of non-compliance;

5.1.2. a reference to the specific provision(s) of the Settlement Agreement or Confidential Addendum that are involved;

5.1.3. a statement of the remedial action sought by the initiating party; and

5.1.4. a brief statement of the specific facts, circumstances and legal argument supporting the position of the initiating party.

5.2. Response.

Within forty-five (45) days of receipt of a Notice provided pursuant to Section 5.1, the non-initiating party shall respond to the initiating party in writing.

5.3. Meet and Confer.

Within two weeks after the response described above, the Parties shall informally meet and confer and attempt to resolve the issues raised in the Notice.

5.4. Submission to Binding Arbitration.

5.4.1. If the matters raised in a Notice provided pursuant to Section 5.1 are not resolved within thirty (30) days of the initial meet and confer required by Section 5.3, either party may submit the unresolved matters to binding arbitration as set forth herein.

5.4.2. The arbitration hearing shall be conducted by an arbitrator affiliated with JAMS, in accordance with the JAMS Streamlined Arbitration Rules & Procedures. However, those Rules will be modified as necessary to ensure that the hearing is held within thirty (30) days of the submission to arbitration, and that a written decision on the matter is rendered within sixty (60) days of the first hearing date.

6. Notice or Communication to Parties

Any notice or communication required or permitted to be given to the parties hereunder shall be given in writing by facsimile or email and United States mail, addressed as follows:

To Claimants:

Linda M. Dardarian

c/o Goldstein, Demchak, Baller, Borgen & Dardarian

300 Lakeside Drive, Suite 1000

Oakland, CA 94612

Fax No.: (510) 835-1417

Elaine B. Feingold

Law Office of Elaine B. Feingold

1524 Scenic Avenue

Berkeley, CA 94708

To Trader Joe’s:

Doug Yokomizo

Trader Joe’s Company, Inc.

800 S. Shamrock Avenue

Monrovia, CA 91016

7. Modification in Writing

No modification of the Full Agreement shall be effective unless in writing and signed by authorized representatives of all Parties.

8. Joint Press Release to Announce the Rollout Program for POS Terminals with Integrated Tactually Discernable Keypads.

The Parties will issue a joint press release on a mutually agreed upon date within thirty days after the beginning of the roll-out described in Section 3.2, above. If the parties cannot agree on a press release, any party may issue its own release provided the release is distributed to all parties at least forty-eight hours prior to release.

9. No Other Representations

10. Full Agreement Has Been Read.

11. No Assignment.

12. Agreement Binding on Assigns And Successors

The Full Agreement shall bind any assigns and successors of the Parties. Counsel shall be notified in writing within thirty (30) days of the existence, name, address and telephone number of any assigns or successors of Trader Joe’s.

13. Force Majeure

The performance of Trader Joe’s under this Settlement Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, unavailability of parts, equipment or materials through normal supply sources, or defects or other problems with the software necessary to support the POS Terminals with Integrated Tactually Discernable Keypads. If Trader Joe’s seeks to invoke this Section, it shall notify Counsel in writing as soon as reasonably possible, specifying the particular action that could not be performed and the specific reason for the non-performance. Counsel and Trader Joe’s will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to section 5 of this Settlement Agreement.

14. No Admission of Liability.

In entering into the Full Agreement, Trader Joe’s does not admit, and specifically denies, that it has violated or failed to comply with any Access Laws.

15. Authority.

16. Integrated Agreement.

The Full Agreement constitutes the entire agreement relating to the subject matters addressed therein.

17. Rules of Construction.

18. Triplicate Originals/Execution in Counterparts.

All Parties and their respective counsel shall sign three copies of this document and each such copy shall be considered an original. This document may be executed in counterparts.

Parties

Trader Joes Company, Inc.

By: Trader Joe’s Company, Inc.

American Council of the Blind

By: Melanie Brunson, Executive Director

American Foundation for the blind

By: Paul Shroeder, Director, Government Affairs

California Council of the Blind

By: Jeff Thom, President

Approved as to From:

By: Doug Yokomizo, Esq., Attorney for Trader Joe’s

GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN

By: Linda M. Dardarian, Esq.

LAW OFFICE OF ELAINE B. FEINGOLD

By: Lainey Feingold, Esq.

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Simplified Summary: This document is the legal agreement signed by Trader Joe’s and of the American Council of the Blind (ACB), the American Foundation for the Blind, and the California Council of the Blind (CCB). In this document, Trader Joe’s agreed to make changes so blind people can pay for things with payment cards and enter their own PIN. Trader Joe’s agreed that payment devices in Trader Joe’s stores would have keys that a person can feel. All Trader Joe’s stores in the U.S. will have a keypad. Lainey Feingold and Linda Dardarian were the lawyers for the blind community. No lawsuit was filed. Instead, a formal process known as Structured Negotiations was used. [Back to Agreement]

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Filed under Settlement Agreements, Point of Sale Settlements on Aug 18th, 2009

Target Point of Sale Settlement Agreement

This Target Point of Sale Settlement Agreement was negotiated by Lainey Feingold and Linda Dardarian using Structured Negotiations on behalf of the American Council of the Blind (ACB), the American Foundation for the Blind, and the California Council of the Blind (CCB). In the Agreement, Target agreed to install tactile point of sale devices in every Target store in the United States. On May 14, 2009, the parties issued a press release about the Target POS settlement.

Simplified Summary of this Document

SETTLEMENT AGREEMENT

This Settlement Agreement (hereinafter “Settlement Agreement”) and the related document entitled Confidential Addendum to Settlement Agreement (collectively referred to herein as the “Full Agreement”) are entered into as of the Effective Date, as defined below in Section 1.4, by and between the following parties: American Council of the Blind (”ACB”), American Foundation for the Blind (”AFB”), and California Council of the Blind (”CCB”) (collectively, the “Claimants”), and Target Corporation (”Target”). Claimants and Target are at times referred to collectively herein as the “Parties.”

RECITALS

The Full Agreement is based on the following facts:

A. ACB is a non-profit organization that provides advocacy services in the United States on behalf of individuals who are blind or have visual impairments. CCB is ACB’s California affiliate serving the needs of blind and visually-impaired persons throughout the State of California. ACB is incorporated in Washington, D.C. and has its place of business in Arlington, Virginia. CCB is incorporated and has its place of business in the State of California.

B. AFB is a national non-profit organization whose mission is to eliminate the inequities faced by the more than ten million blind and visually impaired persons in the United States. AFB’s headquarters are in New York, New York, and its Public Policy Center is in Washington, D.C. In negotiations leading to execution of this Settlement Agreement, Claimants have been represented by Linda M. Dardarian of Goldstein, Demchak, Baller, Borgen and Dardarian, and Lainey Feingold of The Law Office of Lainey Feingold.

C. Target operates retail stores in California and other states across the United States. Target’s retail stores include general merchandise stores and SuperTarget stores (collectively, “Target Stores”). In negotiations leading to execution of this Agreement, Target has been represented by Robert Naeve of Jones Day.

D. Target currently equips each of the cash registers in its stores with one of three types of POS Devices that are designed to assist customers in making credit and debit card purchases.

1. Commencing in March 2002, Target equipped all of its stores with IBM Smart Card Reader POS Devices, which utilize video touchscreens and a stylus pen (”IBM POS Device”). Target equipped each store that uses IBM POS Devices with a number of acrylic raised number overlays (the “IBM Overlays”) that could be placed over the video screen to assist visually impaired customers input Personal Identification Numbers (”PINs”). Commencing March 2006, Target has been phasing out all IBM POS Devices so that they will no longer be in use after December 2010.

2. Commencing March 2006, Target installed Hypercom L-4100 POS Devices (”L-4100 POS Device”) in all of its newly constructed stores. Target equips each store using L-4100 POS Devices with a number of Hypercom ADA Keypad Appliances (”POS Overlay”), that snap onto the Hypercom POS Device to assist visually impaired customers input their PINs.

3. Commencing July 2008, Target began installing Hypercom L-4150 POS Devices (”L-4150 POS Device”) in all of its newly constructed stores. Target equips each store that uses L-4150 POS Devices with a number of Hypercom P-1310 PIN PADs (”P-1310 PIN PAD”), an auxiliary keypad that can be plugged into the L-4150 POS Device to assist visually impaired customers input their PINs.

E. In a demand letter dated April 15, 2005, Claimants alleged that POS Devices deployed in Target’s stores throughout the United States were inaccessible to individuals who are blind or visually impaired in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., California’s Unruh Act, Cal. Civ. Code §§ 51 et seq., and California’s Blind and Disabled Persons Act, Cal. Civ. Code §§ 54 et seq., and other similar federal, state, local, or administrative laws, statutes, rules, or regulations relating to disability access or disability discrimination by a public accommodation or business (”Access Laws”). Target disputes whether any Access Laws apply to its POS Devices. Target denies that it has engaged in any unlawful or wrongful conduct with respect to the alleged inaccessibility of its POS Devices, and further denies that Claimants or any of their members have been injured or have suffered damages in any amount, or at all.

F. The Parties subsequently entered into structured negotiations to resolve their disputes regarding Claimants’ claim that Target’s POS Devices are inaccessible in violation of the Access Laws. In addition to negotiating the terms and conditions of this Agreement, Target and Claimants participated in testing of the L-4100 POS Device and its POS Overlay, as well as L-4150 POS Device with the P-1310 PIN PAD by individuals with visual impairments who were members of one or more of the Claimants’ organizations. The Parties jointly concluded that both of these devices were accessible to and usable by individuals with visual disabilities.

G. The Parties enter into the Full Agreement in order to resolve the Claims and to avoid the burden, expense, and risk of potential litigation. Neither the Full Agreement, nor any of its terms or provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession by Target of any violation or failure to comply with any applicable law. Neither the Full Agreement nor any of its terms and provisions shall be offered or received as evidence for any purpose whatsoever against Target in any action or proceeding, other than a proceeding to enforce the terms of the Full Agreement.

AGREEMENT

1. Definitions.

As used in the Full Agreement, the following terms shall be as defined below:

1.1

Americans with Disabilities Act or ADA means Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and the Title III implementing regulations, 28 C.F.R., Part 36.

1.2

Claims means the contention by Claimants and their respective boards, staff, members and clients, and other blind and visually-impaired persons, that Claimants are being, have been and continue to be discriminated against due to alleged inaccessibility of certain POS Devices in Target Stores pursuant to applicable Access Laws.

1.3

Counsel means Goldstein, Demchak, Baller, Borgen and Dardarian, The Law Office of Lainey Feingold, and the attorneys practicing law therein.

1.4

Effective Date means March 31, 2009.

1.5

Existing Target Store means a Target Store that is open to the public as a Target Store on March 31, 2009.

1.6

New Target Store means a Target Store that is first opened to the public after March 31, 2009.

1.7

Next Generation POS Device means a POS Device, other than the L-4100 POS Device, the L-4150 POS Device or IBM POS Device. Any such device will include an integrated or permanently attached raised button keypad, have raised tactile markings on the Function keys, as follows: Enter/ Accept (green key with a raised circle); (ii) Cancel (red key with a raised X); and (iii) Correct / Clear (yellow key with a raised backward arrow, vertical line, or forward or backward slash), and provide at least the same level of functionality for customers with visual impairments as provided by the P-1310 PIN Pad.

1.8

POS Overlay means the raised button keypad that is designed to be placed on the screen of, and work in conjunction with, the L-4100 POS Device. The L-4100 POS Device shall be programmed so that customers may input, clear, cancel and enter PINs using the POS Overlay.

1.9

Personal Identification Number or PIN means a unique numerical code used by individual customers that must be entered into a POS Device before conducting certain transactions on the POS Device.

1.10

P-1310 PIN PAD means the raised button keypad that plugs into, and works in conjunction with, the L-4150 POS Device. The L-4150 POS Device shall be programmed so that customers may input, clear, cancel and enter PINs using the P-1310 PIN PAD.

1.11

Point of Sale Device or POS Device means a device that is staffed by a Target employee and used by a customer at a point of purchase to pay for items with a debit, credit or other electronic funds card. POS Device does not include equipment that may be used by a customer in Target Stores to scan, price, or weigh products, or payment devices at non-staffed locations. The IBM POS Device, L-4100 POS Device and L-4150 POS Device are POS Devices within the meaning of this Agreement.

1.12

Staffed Guest Services Counter means the Guest Services Counter typically located at the front of a Target Store, where at least one POS Device is placed to assist customers in making returns and/or paying for products or services. The term Staffed Guest Services Counter does not include Staffed Front End Checkstands.

1.13

Staffed Front End Checkstand means any checkstand at the front of a Target Store where a POS Device is placed and which is staffed by a Target employee to assist customers in paying for products or services. The term Staffed Front End Checkstand does not include Staffed Specialty Counters or Staffed Guest Services Counters.

1.14

Staffed Specialty Counter means the staffed counters equipped with cash registers, for the jewelry, pharmacy, electronics and Food Avenue departments within a Target Store.

2. Duration and Geographic Scope of Agreement.

The Full Agreement shall apply to Target Stores in every state in the United States in which Target operates Target Stores. The terms of the Full Agreement shall remain in effect from the Effective Date until June 30, 2011.

3. Provisions Regarding POS Devices.

3.1 Target Stores in California.

On or before December 31, 2009, Target shall equip all POS Devices in all Target Stores located in the State of California with either a POS Overlay (for stores using L-4100 POS Devices) or a P-1310 PIN PAD (for stores using L-4150 POS Devices). All POS Overlays and P-1310 PIN PADs required by this section 3.1 will be attached to the POS Devices.

3.2 Target Stores Outside of California.

3.2.1 On or before December 31, 2010, Target shall remove IBM POS Devices from all Target Stores outside the state of California, and shall replace the IBM POS Devices with the L-4150 POS Devices.

3.2.2 Concurrently with removal of IBM POS Devices and installation of L-4150 POS Devices as required by paragraph 3.2.1 above, Target shall equip each Target Store outside the State of California with P-1310 PIN PADs as follows:

(i) Staffed Guest Services Counter: Target shall attach one P-1310 PIN PAD to one POS Device at the Guest Services Counter of each Target Store.

(ii) Staffed Front End Checkstands: Target shall attach P-1310 PIN PADs to Staffed Front End POS Devices in conformance with the following schedule:

Staffed Front End Checkstands Staffed Front End Checkstands

Total Number of Staffed Front End Checkstands Minimum Number of P-1310 PIN PADs

1-4 1

5-8 2

9-15 3

Over 15 3, plus 20% of additional aisles

(iii) Staffed Specialty Counters: Target shall attach one P-1310 PIN PAD to one POS Device located at the electronics, Food Avenue, jewelry, and pharmacy counters.

3.2.3 On or before December 31, 2010, Target shall equip all Target Stores outside the state of California using L-4100 POS Devices with POS Overlays as follows:

(i) Staffed Guest Services Counter: Target shall attach one POS Overlay to the stand of one POS Device at the Guest Services Counter of each Target Store.

(ii) Staffed Front End Checkstands: Target shall attach POS Overlays to the stands of Staffed Front End POS Devices in conformance with the following schedule:

Staffed Front End Checkstands Staffed Front End Checkstands

Total Number of Staffed Front End Checkstands Minimum Number of POS Overlays

1-4 1

5-8 2

9-15 3

Over 15 3, plus 20% of additional aisles

(iii) Staffed Specialty Counters: Target shall attach one POS Overlay to the stand of one POS Device located at the electronics, Food Avenue, jewelry, and pharmacy counters.

3.3 Maintenance.

Target will use its best efforts to maintain all POS Devices, POS Overlays, P-1310 PIN PADs and Next Generation POS Devices in operable, working condition except for isolated or temporary interruptions in service due to maintenance or repairs.

3.4

To the extent possible, Target will make good faith efforts to ensure that POS Overlays and PIN PADs installed pursuant to Sections 3.2.2(ii) and 3.2.3(ii) will be placed at the Staffed Checkstands closest to the stores’ front entrances, and Target will make good faith efforts to ensure that those Checkstands will be open during all hours of store operation.

3.5 Rollout Information to Claimants.

On a semi-annual basis, beginning one month after execution of this Settlement Agreement by all parties and continuing through the Term of this Settlement Agreement, Target shall provide to Claimants a written list of the stores at which L-4150 POS Devices equipped with P-1310 PIN PADs, as well as L-4100 POS Devices equipped with POS Overlays, have been installed pursuant to the terms of this Agreement.

3.6 Testing of Next Generation POS Device.

In the event Target chooses to install a Next Generation POS Device instead of either the L-4100 POS Device or L-4150 POS Device, Target shall meet and confer with Claimants so that Claimants may test and provide feedback on any Next Generation Device to be installed in Target Stores prior to Target making a final purchasing decision about the Next Generation Device. Claimants shall provide any feedback within fourteen days of their testing and such feedback will be considered in good faith by Target. Target will retain the right to decide the brand and model of the Next Generation POS Device.

4. Training of Target Personnel.

4.1

Target will update its online training program and materials to ensure that such materials cover, inter alia, (i) the installation of the POS Overlays, P-1310 PIN PADs and (if applicable) Next Generation POS Devices; (ii) the reason visually impaired Target customers need the Devices; (iii) the manner in which visually impaired Target customers use the Devices; (iv) locations of the POS Overlays and/or P-1310 PIN PADs in Target Stores; and (v) guidelines for appropriate interactions with visually impaired customers using the L-4100 POS Device, the L-4150 POS Device or Next Generation POS Devices.

4.2

Target will provide Claimants with a copy of the updated training materials prior to their finalization. Review and distribution of the proprietary training material is to be limited to Claimants and their attorneys only for purposes of this dispute. All training material shall be returned to Target or confidentially destroyed. Target will consider the feedback provided by Claimants and use good faith efforts to incorporate applicable feedback provided that such feedback is submitted in a timely manner and is consistent with this Agreement. The details of the training program will be in the sole discretion of Target.

5. Joint Press Release.

The Claimants and Target may jointly issue a press release announcing the terms of this Agreement. If the Parties cannot agree on the language of a joint press release, or the timing of its issuance, either party may issue its own release provided that it is shared with the other Parties at least three business days prior to issuance, is consistent with the terms of this Agreement, and reflects the collaborative method in which the Parties resolved the Dispute.

6. Right to Seek Modification.

6.1

Target may seek to modify the schedules set forth in Section 3 above, if Target reasonably believes that compliance with the schedules will result in an “undue burden” within the meaning of 42 U.S.C. section 12182(iii) and 28 C.F.R. sections 36.104 and 36.303. Additionally, as set forth in Section 14, Target may also seek to modify these schedules as a result of Force Majeure.

6.1.1 As used in this Agreement, the term “undue burden” means significant difficulty or expense. In determining whether an action would result in an Undue Burden, factors to be considered include those set forth in 28 C.F.R. section 36.104, part III-4.3600 of the Technical Assistance Manual, and any other regulations/interpretive guidance issued by or on behalf of the United States Department of Justice.

6.2

Target may also seek to modify or suspend compliance with the schedules set forth in Section 3 above if Target reasonably concludes in good faith either that:

6.2.1 Unforeseen circumstances render compliance with Section 3 impossible or impracticable; or

6.2.2 Installation or continued use of a POS Device, POS Overlay or P-1310 PIN PAD required by this Agreement is prohibited, restricted or made impracticable by federal, state or local law or regulation, or by any modification of or changes to the Payment Card Industry’s PED Security Standards, or other similar standards.

6.3

If Target seeks to modify the schedules as provided in Section 3, above, it will send Claimants a Notice of Proposed Modification, describing the factual basis of the reason for the modification or suspension, and proposing a modified schedule. If within sixty (60) days after their receipt of Target’s Notice of Proposed Modification the Parties have not reached agreement regarding the Notice, the matter will be resolved pursuant to Section 7.4, below.

6.4

Target shall not be in breach of any term of this Agreement if it fails to comply with the schedules set forth in Section 3 after providing to Claimants a Notice of Modification pursuant to Section 6 above.

7. Procedures in the Event of Disputes.

7.1 Notice of Non-Compliance.

If a party believes that the other party has not complied with any provision of the Full Agreement, that party shall provide the other party with Notice of Non-Compliance containing the following information:

7.1.1 the alleged act of non-compliance;

7.1.2 a reference to the specific provision(s) of the Settlement Agreement or Confidential Addendum that are involved;

7.1.3 a statement of the remedial action sought by the initiating party;

7.1.4 a brief statement of the specific facts, circumstances and legal argument supporting the position of the initiating party.

7.2 Response.

Within forty-five (45) days of receipt of a Notice provided pursuant to Section 7.1, the non-initiating party shall respond to the initiating party in writing.

7.3 Meet and Confer.

Within two weeks after the response described above, the Parties shall informally meet and confer and attempt to resolve the issues raised in the Notice.

7.4 Submission to Mediation/Binding Arbitration.

7.4.1 If the matters raised in a Notice provided pursuant to Section 7.1 are not resolved within forty-five (45) days of the initial meet and confer required by Section 7.3, either party may submit the unresolved matters to nonbinding mediation before a mediator affiliated with JAMS, or such other mediator as the Parties may jointly designate.

7.4.2 If the dispute is not settled in mediation, it shall be submitted to binding arbitration before an arbitrator affiliated with JAMS. The arbitration hearing shall be conducted in accordance with the JAMS Streamlined Arbitration Rules & Procedures. However, those Rules will be modified as necessary to ensure that the hearing is held as soon as practicable after the submission to arbitration, and that a written decision on the matter is rendered within sixty (60) days of the last hearing date.

8. Notice or Communication to Parties.

Any notice or communication required or permitted to be given to the parties hereunder shall be given in writing by facsimile or email and United States mail, addressed as follows:

To Claimants:

Linda M. Dardarian

c/o Goldstein, Demchak,

Baller, Borgen & Dardarian

300 Lakeside Drive, Suite 1000

Oakland, CA 94612

Fax No.: (510) 835-1417

[email address omitted]

Lainey Feingold

Law Office of Lainey Feingold

1524 Scenic Avenue

Berkeley, CA 94708

[email address omitted]

To Target:

Jason K. Walbourn, Esq.

Senior Corporate Counsel

Target Corporation

1000 Nicollet Mall

TPS-3155

Minneapolis, MN 55403

Robert A. Naeve

Jones Day

3 Park Plaza

Suite 1100

Irvine, CA 92614

[email address omitted]

9. Modification in Writing.

No modification of the Full Agreement shall be effective unless in writing and signed by authorized representatives of all Parties.

10. No Other Representations.

11. Full Agreement Has Been Read.

12. No Assignment.

13. Agreement Binding on Assigns and Successors.

The Full Agreement shall bind any assigns and successors of the Parties.

14. Force Majeure.

The performance of Target under this Settlement Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, or unavailability of operable equipment, materials or software through normal supply sources. If Target seeks to invoke this Section, it shall notify Counsel in writing as soon as reasonably possible, specifying the particular action that could not be performed and the specific reason for the non-performance. Counsel and Target will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to Section 7.4 of this Settlement Agreement.

15. No Admission of Liability.

In entering into the Full Agreement, Target does not admit, and specifically denies, that it has violated or failed to comply with any Access Laws.

16. Authority.

17. Integrated Agreement.

The Full Agreement constitutes the entire agreement relating to the subject matters addressed therein.

18. Rules of Construction.

19. Triplicate Originals/Execution in Counterparts.

All Parties and their respective counsel shall sign three copies of this document and each such copy shall be considered an original. This document may be executed in counterparts.

TARGET CORPORATION

By: Target Corporation

AMERICAN COUNCIL OF THE BLIND

By: Melanie Brunson, Executive Director

AMERICAN FOUNDATION FOR THE BLIND

By: Paul Shroeder, Vice President, Programs & Policy Group

CALIFORNIA COUNCIL OF THE BLIND

By: Jeff Thom, President

APPROVED AS TO FORM:

JONES DAY

By: Robert Naeve, Esq., Attorneys for Target Corporation

GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN

By: Linda M. Dardarian, Attorneys for Claimants

LAW OFFICE OF LAINEY FEINGOLD

By: Lainey Feingold, Attorneys for Claimants

Simplified Summary: This document is the legal agreement signed by Target with the American Council of the Blind (ACB), the American Foundation for the Blind and the California Council of the Blind (CCB). Target agreed to make changes so blind people could use payment cards and enter their own PIN. Staples agreed to add keys to their payment devices that a person can feel. Every store in the U.S. will have a keypad. Lainey Feingold and Linda Dardarian were the lawyers for the blind community. No lawsuit was filed. Instead, a formal process known as Structured Negotiations was used. [Back to Agreement]

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Filed under Settlement Agreements, Point of Sale Settlements on May 14th, 2009