by Kim Krause Berg
Even though there are accessibility standards and guidelines provided by WCAG2.1, companies are not legally bound to apply them in the United States.
However, while the United States debates the merits of website accessibility for the general public and enforcing Title III of the ADA for today’s digital landscape, the number of lawsuits has soared.
There is no official set of website accessibility standards or criteria set forth by the US Department of Justice for businesses to legally comply with, other than Section 508 under Title II. In fact, most recently, a new law was signed with regards to Federal agencies only.
The H.R. 5759 21st Century Integrated Digital Experience Act (IDEA) was signed into law on December 20, 2018. (https://www.congress.gov/bill/115th-congress/house-bill/5759/text)
“ Requirements For New Websites And Digital Services. — Not later than 180 days after the date of enactment of this Act, an executive agency that creates a website or digital service that is intended for use by the public, or conducts a redesign of an existing legacy website or digital service that is intended for use by the public, shall ensure to the greatest extent practicable that any new or redesigned website, web-based form, web-based application, or digital service”.
It is easy to skim this law and believe it pertains to every website, including a simple blog, or is related to Title III of the ADA, which it is not. The House of Representatives tried to nudge the needle with H.R. 620 ADA Education and Reform Act of 2017 (https://www.congress.gov/bill/115th-congress/house-bill/620/text) in an attempt to block the rising tide of ADA lawsuits, but it was poorly conceived and would have created more harm than good to the ADA, so it was blocked by the Senate.
There is no denying the demand for universal and inclusive design and the positive, welcome contributions enabling billions of people through advances in computer technology and software development. Unfortunately, accessibility for websites has not been a priority. It requires new skills and training. It should be built into every development cycle and added to business requirements because it is the right thing to do. Most accessibility testing tools are free to use. WCAG2.1 and Section 508 guidelines, the basis for compliance around the world, are provided for free on the web.
So why are there so many lawsuits? What is causing the confusion in the US? I wanted to be better informed and ready with facts for my clients and friends with websites.
The Americans with Disabilities Act in the USA and Website Accessibility Enforcement
On July 26, 1990, the late President George H.W. Bush signed into law the Americans with Disabilities Act (ADA), which is a civil rights law prohibiting discrimination on the basis of disability.
Its purpose is to protect the rights of individuals with disabilities for employment, access to state and local government services, places of public accommodation, transportation, and more.
On July 26, 1991, the DOJ issued its final rules for following Title II and Title III but neither addressed website accessibility.
Title II of the ADA applies to state and local government entities. It protects individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by state and local government entities. What we refer to as Section 508 web accessibility falls under Title II.
Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations. These are businesses that are generally open to the public and there are 12 categories, including schools, recreation, offices, and medical buildings.
Your ecommerce website and public mobile applications fall under Title III.
Section 508 & Title II
In June 2003, in recognition of how the Internet was transforming interactions between the public and governmental entities, the DOJ published Accessibility of State and Local Government Websites to People with Disabilities, to provide state and local governments guidance on how to make their websites accessible and ensure that persons with disabilities have equal access to the services, programs, and activities that are provided through those websites.
Title III was not included with this update.
The gap between government and public website accessibility began to confuse companies that conduct online business with the government and schools with websites, such as universities that accept federal financial aid.
Website Accessibility Roller Coaster
There have been attempts to add website accessibility enforcement support over the years.
Each has been met with failure.
ANPRM, NPRM & SANPRM
On September 30, 2004, the DOJ began the process of updating the 1991 regulations based on the relevant parts of the ADA and Architectural Barriers Act Accessibility Guidelines by publishing an Advance Notice of Proposed Rulemaking(ANPRM) and inviting public comment.
On June 17, 2008, the DOJ issued a Notice of Proposed Rulemaking to adopt the revised 2004 ADA/ABA Guidelines and revise Title II and Title III regulations. The 2008 NPRM addressed the issues raised in the public’s comments to the 2004 ANPRM and sought additional comments.
Neither the 2004 ANPRM or 2008 NPRM included a proposal for web accessibility provisions despite public comments urging the DOJ to issue web accessibility regulations under the ADA.
The ADA Amendments Act of 2008 went into effect on January 1, 2009.
Among other things its purpose was to make updates to the existing law and carry out the ADA’s objectives of providing:
“a clear and comprehensive national mandate for the elimination of discrimination”
“clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protection to be available under the ADA”
On July 26, 2010, the DOJ published an ANPRM titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. This was the first attempt to include website accessibility enforcement.
On September 15, 2010 Titles II and II were revised again and called the 2010 ADA Standards for Accessible Design. They did not include web accessibility.
Hopes were raised when in the fall of 2015, the DOJ released a Statement of Regulatory that included three paragraphs on website accessibility.
This document addressed the realization that it became impractical to separate Title II (Government websites) and Title III (public websites) because they are often blended together. The document states:
“Public entities are increasingly providing their constituents access to government services and programs through their web sites. Information available on the Internet has become a gateway to education, and participation in many other public programs and activities. Through Government web sites, the public can obtain information or correspond with local officials without having to wait in line or be placed on hold. They can also pay fines, apply for benefits, renew State-issued identification, register to vote, file taxes, request copies of vital records, and complete numerous other everyday tasks.”
“Consequently, the Department is planning to amend its regulation implementing title II of the ADA to require public entities that provide services, programs or activities to the public through Internet web sites to make their sites accessible to and usable by individuals with disabilities.”
It went on to state that they “will be publishing separate NPRMs addressing web site accessibility pursuant to titles II and III of the ADA. The Department expects to publish the title II NPRM early in fiscal year 2016.”
That never happened.
In April 29, 2016, the DOJ issued a new SANPR called “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities”.
It is one of four ADA rulemaking documents that were removed and are now archived.
This particular document provides real insight into what’s complicating matters and why the government is unable to come up with any formal legislation on website accessibility.
It’s worth reading if you want to understand the history and read the public comments.
Next, the House of Representatives introduced H.R.620, ADA Education and Reform Act of 2017 which stalled in the Senate. There were many issues with it, from costs to the lack of what accessibility standards would be enforced and most importantly, the responsibility for resolution fell to the disabled plaintiff, not the business.
On June 20, 2018, 103 members of the U.S. House of Representatives drafted a letter to then Attorney General of the Justice Department, Jeff Sessions, regarding the flood of lawsuits and the ease of litigation when there are no legal standards to follow.
On September 25, 2018, the DOJ responded in a letter to Congressman Ted Budd. It references the withdrawal of the four rulemaking attempts to address website accessibility and the ADA and why.
The DOJ is “evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.” It references two Executive Orders covering the reduction of regulations and controlling costs.
In addition, this section caught the attention of law firms:
“Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”
Providing an accessible website or application is strongly recommended. Other countries sorted out how to budget, enforce and advocate full access to the digital world. The US may not have its ducks in a row but that isn’t preventing companies from building accessible websites and creating opportunities for equal access to the web for everyone.
This article is adapted from Website Accessibility & the Law: Why Your Website Must Be Compliant, also written by me.
For Your Reference
- Section 508
- Accessibility of State and Local Government Websites to People with Disabilities
- Statement of Regulatory
- This week in accessibility: Robles v. Domino’s
Originally published in Medium, Feb 7, 2019