Uncertainty in the website accessibility law environment causes businesses and courts to be perplexed about what constitutes an accessible web business and how to make it compliant.
Digital accessibility lawsuits in the United States continue to rise, despite opposition from some circuit court judges.
Overlays, for example, promise automatic accessibility monitoring and repairs but instead create new problems for people with disabilities.
While some countries, such as Canada and the United Kingdom, have developed accessibility guidelines and regulations for specific types of websites, there is no universal legal requirement for any website or application to work equally well for everyone.
Compliance is a frightening term used to intimidate and divert attention away from the most basic incentives to include people with disabilities who want unrestricted access to the internet.
Web Content Accessibility Guidelines, or WCAG, are available online for free to any web designer or developer worldwide.
This article will teach you:
- Why web accessibility is important.
- The American Disability Act’s history.
- Technology, accessibility, and inclusive design
Access to Web-Based Buildings, Schools, Stores is a Civil Right
Most countries have laws in place to protect the civil rights of disabled people in their homes, parks, businesses, and educational facilities. Access to websites and web apps, on the other hand, is not universal.
The internet provides global access to information, stores, education, financial institutions, music, and video; however, for people with disabilities, there may be limitations or reliance on assistive devices to gain unrestricted access.
Even a minor injury or jolt that causes us to forget our password can be an impediment to access.
Computers are taken for granted. They are used everywhere, including paying for items at a self-service checkout and ordering pizza from a mobile phone.
All of this technology does not imply that it is available to everyone. Persons with impairments, such as low vision, are also more likely to be unable to see the screen or reach the keyboard from their wheelchair.
Fortunately, there are standards in place that align development with widely accepted protocols.
These standards are known as the World Wide Web Consortium (W3C), and the accessibility guidelines are known as Web Content Accessibility Guidelines (WCAG) (WCAG).
Section 508 is the policy in the United States that governs accessible digital design for government, education, and any institutions that are officially affiliated with them.
The 21st Century Integrated Digital Experience Act requires federal websites to follow certain guidelines.
Investigate Your Country
It is critical to understand your country’s web accessibility laws and recommendations.
Non-government websites are referred to as “public” and “public sector” entities in both the United States and the United Kingdom, allowing the legal system to hear cases brought by people with disabilities who are unable to use a public-facing business website.
In the United States, this is known as ADA Title III, Public Accommodations and Commercial Facilities. It is not up to date with websites and online web applications.
In September 2018, Europe updated its E.U. Web Accessibility Directive, requiring all public sector websites and applications in E.U. member states to implement, enforce, and maintain accessibility standards or face fines and legal penalties.
Accessibility statements are one of their recommendations that is gaining popularity among those who want to demonstrate initiative.
Bill C-81, also known as the Accessible Canada Act, was enacted in Canada to proactively identify, remove, and prevent barriers to accessibility in areas subject to federal jurisdiction.
One popular rule of thumb for businesses when deciding whether to develop accessible websites is that if a physical business must legally meet accessibility requirements for public access, so should their website version.
Navigating the History of Website Accessibility & the Law in the U.S.
Even though there are accessibility standards and guidelines to follow for websites and web applications, there are no formal laws to enforce them in the United States. This is because Title III of the ADA does not define “public accommodation” as including websites.
While the Department of Justice is expected to enforce the ADA and may interpret it to apply to public websites, it has declined to issue regulations.
Returning to civil rights, many courts ethically rule in favor of plaintiffs denied access to a business that is not designed to accommodate their disability.
Employers and equal hiring are included, as are team meetings among remote workers who require captions or screen magnification, and, if necessary, the provision of software or assistive devices to enable tasks.
So, what’s the deal with all the lawsuits?
On July 26, 1990, late President George H.W. Bush signed into law the Americans with Disabilities Act (ADA), a civil rights law that prohibits disability discrimination.
Its goal is to protect individuals with disabilities rights to employment, access to state and local government services, public accommodations, transportation, and other services.
The DOJ issued its final rules for complying with Titles II and III on July 26, 1991, but neither addressed website accessibility.
Title II of the Americans with Disabilities Act (ADA) applies to state and local governments. It protects people with disabilities from disability discrimination in services, programs, and activities provided by state and local governments. Title II governs what we call Section 508 web accessibility.
Title III prohibits disability discrimination in the activities of places of public accommodation. There are 12 categories of businesses that are generally open to the public, including schools, recreation, offices, and medical buildings.
Title III applies to your eCommerce website and public mobile applications.
Title II and Section 508
In June 2003, the DOJ issued Accessibility of State and Local Government Websites to People with Disabilities in recognition of how the internet was transforming interactions between the public and governmental entities.
They did this to guide state and local governments on making their websites accessible and ensuring that people with disabilities have equal access to the services, programs, and activities offered through those websites.
This update did not include Title III. The document hasn’t been updated in a long time.
Because there is little clear guidance, companies that conduct online business with the government and schools with websites, such as universities that accept federal financial aid, are perplexed.
The Website Accessibility Roller Coaster Known as ANPRM, NPRM & SANPRM
Attempts have been made over the years to add website accessibility enforcement support.
Each has failed.
By publishing an Advance Notice of Proposed Rulemaking (ANPRM) and inviting public comment 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.
The Department of Justice issued a Notice of Proposed Rulemaking on June 17, 2008, to adopt the revised 2004 ADA/ABA Guidelines and revise Title II and Title III regulations.
The 2008 NPRM addressed the concerns raised in the public comments to the 2004 ANPRM and solicited additional feedback.
Despite public comments urging the DOJ to issue web accessibility regulations under the ADA, neither the 2004 ANPRM nor the 2008 NPRM included a proposal for web accessibility provisions.
The Americans with Disabilities Act Amendments Act of 2008 went into effect on January 1, 2009.
Its purpose, among other things, was to update 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.”
The DOJ issued an ANPRM titled Nondiscrimination based on Disability; Accessibility of Web Information and Services of State and Local Government Entities, and Public Accommodations on July 26, 2010.
This was the first attempt at incorporating website accessibility enforcement.
Titles II and III were revised again on September 15, 2010, and were renamed the 2010 ADA Standards for Accessible Design. They left out web accessibility.
The DOJ issued a Statement of Regulatory Guidance in the fall of 2015, which included three paragraphs on website accessibility.
This document addressed the realization that separating Title II (Government websites) and Title III (public websites) had become impractical due to their frequent overlap.
According to the document:
“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 say that they “will be publishing separate NPRMs addressing website accessibility following ADA titles II and III.” The Department anticipates that the title II NPRM will be published early in the fiscal year 2016.”
That didn’t happen.
The DOJ issued a new SANPR on April 29, 2016, titled Nondiscrimination based on Disability; Accessibility of Web Information and Services of State and Local Government Entities.
It is one of four ADA rulemaking documents that have been archived.
This document provides real insight into what’s complicating matters and why the government has been unable to pass any formal legislation on website accessibility.
If you want to understand the history and read the public comments, it’s worth reading.
The House then introduced H.R.620, the ADA Education and Reform Act of 2017, which died in the Senate.
There were numerous issues with it, ranging from the cost to the lack of clarity on what accessibility standards would be enforced, and, most importantly, the responsibility for resolution fell on the disabled plaintiff, not the business.
On June 20, 2018, 103 members of the United States House of Representatives drafted a letter to then-Justice Department Attorney General Jeff Sessions about the flood of lawsuits and the ease of litigation when there are no legal standards to follow.
The Department of Justice responded in a letter to Congressman Ted Budd on September 25, 2018. It discusses why the four rulemaking attempts to address website accessibility and the ADA were withdrawn.
The Department of Justice is “evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure ADA compliance.”
It refers to two Executive Orders dealing with regulatory reduction and cost control.
Furthermore, law firms were drawn to this section:
“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.”
It becomes a moral choice in the United States to include or exclude people with disabilities or impairments, whether permanent or temporary, from using a web-based business or web app.
The new, completely redesigned, accessible Whitehouse.gov was launched within the first hour of President Biden’s inauguration, complete with an accessibility statement.
Plan for Inclusion
Should you be concerned if your company operates online? Absolutely.
While the number of ADA lawsuits continues to rise, the outcomes are far from consistent. The Ninth Circuit Court of Appeals ruled that the ADA applies to Domino’s website.
They are still fighting the ruling.
A New York judge let Kroger off the hook when their case was ruled moot after they upgraded it from WCAG2.0 to WCAG2.1.
“ADA-based cases so far in 2021 plot a path to 4,000 lawsuits in 2021. This includes cases filed in federal court and those filed in California under the Unruh Act with a direct reference to violation of the ADA. California New York Florida.”
It is a wise business decision to design for inclusion.
Designing for accessibility is highly recommended for branding and reputation, search engines, conversions, revenue, and customer service brownie points.
Companies looking for investors with digital properties stand out with products that are already built to meet WCAG standards. A user-friendly website or web app could give you a competitive advantage.
Unfortunately, when given the option, businesses routinely leave accessibility out of their development cycles because:
- Employees are frequently untrained.
- They have a poor understanding of their target market.
- It is either too expensive or it causes a delay in the timeline.
- Are simply unaware of their users’ various needs.
What are your plans for the future?
There is a need to make technology accessible everywhere there is technology. This has thrown open the doors to anyone who wants to learn how to become an ADA developer.
It inspired WordPress to rebuild itself so that it could be used by anyone to build websites. Twitter and Medium now allow you to add alt text to images. Captions were added by Zoom.
With each new device, Android and iOS introduce new accessibility settings. This opens up possibilities for native app development that solves more problems by removing barriers found on smaller devices.
Employers are increasingly hiring people with disabilities because they understand what it takes to work remotely. They provide a broader understanding of how the world isn’t designed for them and why they expect us to change that.
What it all boils down to is that, even if there is no law requiring you to include people with disabilities as customers, fans, readers, and clients, it makes good business sense to do so.
There’s a good chance you’re one of the 26 percent of Americans with disabilities, or know someone who is or will be.