Throughout the past few decades, significant efforts have been made to expand ADA protections into digital territory, as web and mobile applications become more of a requirement in our daily lives.
The guiding principle of digital accessibility is to provide equal access to all web users, including those with a disability. Website compliance is an important step in avoiding a lawsuit or government action, but it’s also an essential act in an attempt to provide an equal opportunity for all consumers to consume your goods or services.
How Do You Know If Your Website Meets Current Compliance Standards?
Most Importantly, How Do You Know If You’re Legally Required to Meet That Goal?
It can be confusing, and even overwhelming, to determine whether or not your organization is covered by any of the laws that govern web accessibility, as well as understanding what is required by each rule and how you can ensure you’re in compliance.
2018 was a big year for digital accessibility, and as we approach 2019, now is an opportunity to review and reflect on the current state of affairs, this year’s big changes, and what they mean for your organization today and in the days to come.
The American with Disabilities Act and Governing Web Accessibility
The Americans with Disabilities Act (ADA), enacted in 1990, prohibits discrimination against individuals with disabilities in all areas of public life. The law has a wide scope, and applies to:
- State and local government
- Public and private spaces
- Building codes
The ADA is the reason we have things like disabled parking requirements, service counter height requirements, braille keypads, and wheelchair ramp mandates in building codes. When the law was originally enacted nearly 30 years ago, the focus at the time was solely on physical accessibility accommodations, because modern communications technologies like the Internet were still in their infancy. As such, there are no defined set of regulations specific to digital territory.
Title II and Title III of the ADA are the Two Sections that are Most Relevant for Questions of Web Accessibility:
- Title II of the ADA prohibits disability discrimination in services, programs, and activities provided by State and local government entities. These entities include publicly-funded universities, community colleges, and vocational schools.
- Title III of the ADA prohibits disability discrimination in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, such as as restaurants, hotels, movie theaters, museums, and doctor’s offices.
- By Title II and III, institutions of higher education in the U.S. must make online lectures, courses, materials, websites, LMS, MOOCs, and any other technology accessible to students with disabilities, as well as the public if made freely available.
Who Needs to be Compliant, and Why?
If you are a business that exists to benefit the public, a local or state government agency, or are a private employer with 15 or more employees, you should be compliant with the ADA regulations. For all other organizations, the law is a little bit unclear as it currently stands, so it’s best for all commercial websites to meet these regulations, instead of risking a lawsuit. Whether you’re legally required to or not, abiding by these regulations creates a fair online experience for all users, regardless of a potential disability.
The legal consensus is that you must be ADA-compliant if either Title II or Title III apply to your business or organization, but Title III is a gray area and a topic of much dispute in the world of web accessibility. It has many people asking if websites are considered a place of public accommodation, and should they be compliant?
The U.S. Department of Justice is responsible for overseeing ADA compliance by businesses and organizations. Although the ADA doesn’t explicitly mention web accessibility, the DOJ has repeatedly held that the act’s language is still broad enough to include websites as part of business operations, thereby protecting people’s right to fully access the internet and various online services.
The problem has been is the continuous delay in the release of official federal accessibility guidelines. In the meantime, businesses and organizations have been expected to comply with existing technical standards, such as the Web Content Accessibility Guidelines (WCAG) 2.1, until the official guidelines are released. These guidelines include many different criteria at three different success levels of accessibility, ranging from high-contrast color schemes to closed captions for video content.
With the current lack of federal regulations, the legal precedent is changing, and ADA compliance-related lawsuits and their plaintiff victories are on the rise. The U.S. had 4,965 plaintiffs file federal ADA Title III lawsuits in just the first six months of 2018, as compared to 7,663 for the entirety of 2017.
The majority of the lawsuits are related to web accessibility issues for people with vision impairment or blindness, as well as for those with hearing difficulties. The defendants include companies across a broad spectrum of industries, including clothing and apparel stores, telecommunications companies, restaurants, consumer goods, and e-commerce stores.
The surprising fact about these lawsuits is that they have been filed against high-profile companies that many would expect to be ahead of the game when it comes to addressing web accessibility issues. Some of the more significant defendants include: Nike, Converse, Timex, Hershey’s, the Wall Street Journal, CNN, Rolve, and Amazon.
That these major companies are being slammed with these suits with increasing frequency means that there is a chance it can happen to you, too. The best way to avoid a potential litigation scenario is to prioritize accessibility for your consumer’s website experience and comply with the current laws and guidelines.
Ensuring Your Website is Compliant
Now that you understand the myriad of reasons why web accessibility compliance is so important, it’s time to evaluate what you can do to make sure that your website follows these regulations.
Compliance with the most universally accepted standard of web accessibility, the WCAG 2.1, provides the best, most barrier-free experience possible to the disabled community. The World Wide Web Consortium (W3C)’s Web Accessibility Initiative led to its development.
By following the WCAG 2.1, you can also be confident that you’re in compliance with the ADA, and the The Rehabilitation Act. Passed in 1973, this regulation prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors. WCAG 2.1 confirms that you are compliant with two specific sections of the act:
- Section 504
Requirements common to these regulations include reasonable accommodation for employees with disabilities; program accessibility; effective communication with people who have hearing or vision disabilities; and accessible new construction and alterations. Each agency is responsible for enforcing its own regulations.
Section 504 may also be enforced through private lawsuits. It is not necessary to file a complaint with a federal agency or to receive a “right-to-sue” letter before going to court.
- Section 508
This section establishes requirements for electronic and information technology developed, maintained, procured, or used by the federal government. Section 508 requires federal electronic and information technology to be accessible to people with disabilities, including employees and members of the public.An accessible information technology system is one that can be operated in a variety of ways, and does not rely on a single sense or ability of the user. For example, a system that provides output only in visual format may not be accessible to people with visual impairments, and a system that provides output only in audio format may not be accessible to people who are deaf or hard of hearing. Some individuals with disabilities may need accessibility-related software or peripheral devices in order to use systems that do not comply with Section 508.
The Future of Website Accessibility
In June 2018, 103 members of Congress from both parties sent a letter to Attorney General Jeff Sessions, urging action to stem the tide of website accessibility lawsuits and asking the DOJ to formalize web accessibility standards under the ADA.
Section 508 Changes
When Section 508 of the Rehabilitation Act of 1973 was originally created, evolving technologies weren’t really taken into consideration. Websites, documents, and software programs that met Section 508 standards could still have issues for disabled government employees and the public alike. Therefore, revisions were made and all federal agencies, as well as contractors, must abide by the updated 508 standards as of January 18, 2018 – that includes ensuring website 508 compliance.
Published in June 2018, the new WCAG 2.1 better regulates web-connected technologies, mobile devices, and tablets, attempting to keep discrimination towards individuals with disabilities at bay.
WCAG 2.0 was published in 2008, and the technological advancements in the ten years since have been remarkable. As developers and content producers continue to find new and compelling ways to deliver information across a growing number of devices and screen sizes, the 2008 guidelines have become more difficult to fully understand and apply today. WCAG 2.1 is considered an addition to WCAG 2.0, not a replacement, which means that adherence to WCAG 2.1 is an automatic compliance with 2.0, as the existing guidelines and checkpoints remained unchanged.
These enhancements to the current regulations are a step in the right direction to make the web more accessible for everyone, and to help businesses understand the requirements for providing that accessibility and complying with the law.