The U.S. Department of Justice (DOJ) yet again delayed the anticipated rulemaking for website accessibility under the Americans with Disabilities Act (ADA). The guidelines are now expected sometime in 2018 (delayed from the most recent expected date of April 2016). But, as I will discuss below, that does not mean that businesses transacting business with the public through websites and mobile applications should ignore web-based accessibility entirely until 2018.
The ADA and public accommodation
By way of background, the ADA requires that “places of public accommodation” be accessible to the disabled. Most businesses operating some form of physical facility open to the public understand their obligations to make those physical facilities accessible. Public accommodations are generally businesses that are open to the public and fall into one of 12 categories listed in the ADA, such as retail stores, restaurants, hotels, theaters, doctor’s offices, pharmacies, museums, libraries, parks, private schools, and day care centers. Disabled persons can sue under the ADA alleging that they were denied full and equal access to the goods and services at a place of public accommodation. The DOJ can also bring suit for alleged ADA violations. There is a set of very specific largely objective criteria for accessibility of physical locations
Web accessibility legal requirements and development
Is your website a place of public accommodation?
Beginning in 2006, private litigants and the DOJ began filing or threatening to file legal action based on allegedly inaccessible websites (and eventually also including mobile applications). The law is unsettled on whether websites and mobile applications are places of public accommodation under the ADA. Some courts have held that they are, and others have ruled otherwise. The Third, Ninth, and Eleventh Circuit courts apply the ADA only to websites that have a connection to goods and services available at a physical location, like a retail store. The theory in those cases is that the store is a place of public accommodation, and “shopping there” online requires accessibility of the website. The First, Second, and Seventh Circuit courts apply the ADA more broadly to include all websites that offer direct sale of goods or services, even those that lack “some connection to physical space.” Since web-based businesses can be sued anywhere they are regularly transacting business, litigants can select their forum based on which has the most favorable law. With e-commerce, that likely subjects many businesses to suit in all 50 states.
If the website is a place of public accommodation, what has to be done to make it accessible?
Even if a website is a place of public accommodation, the standard for what is accessible under the ADA also is unsettled. There are no current laws or regulations defining what is required. There are voluntary guidelines developed by W3C, an international consortium that develops web standards. The most recent version is the Web Content Accessibility Guidelines (WCAG) 2.0. Even within WCAG 2.0, there are degrees of accessibility: A, AA, and AAA.
In July 2010, the DOJ released an advanced notice of proposed rulemaking seeking comments on website accessibility issues. The comment period closed in January 2011. The proposed rules have been delayed several times since that date. It appears that we will have to wait a little longer to see those rules—until at least 2018.
The lack of formal rules on accessibility has not stopped private litigants and their lawyers and the DOJ from attempting to enforce the ADA against businesses transacting business through websites and mobile applications. The most common targets have been online retailers. But any website or mobile application where business is transacted with the public is vulnerable to such a challenge. The DOJ has been insisting (without any statutory or regulatory basis) that websites and mobile applications be brought into compliance with WCAG 2.0 AA. DOJ settlements also typically impose requirements for ongoing testing and reporting, independent accessibility consultants, accessibility policy development, and training of website developers.
The DOJ still expects to issue proposed rules on websites for public entities under Title II of the ADA in January 2016. These guidelines may inform private sector businesses on what standards might be adopted when the regulations for private sector public accommodations are issued (under the similar Title III of the ADA).
Common barriers to web accessibility are (a) incompatibility with speech recognition or screen reading software, (b) lack of text-based alternatives to media content, (c) poor color contrast or small text size, and (d) transaction timing requirements that do not take into account intellectual disabilities. What does it mean to have an accessible website? At the most basic level, an accessible website would have these (and other) accessible elements:
- Provides text alternatives for any non-text content;
- Provides alternatives for time-based media;
- Includes content that can be presented in different ways without losing information or structure;
- Is easy to see and hear, including separating foreground from background;
- Permits all functionality from a keyboard if needed (as opposed to a cursor);
- Permits sufficient time to read and use content;
- Is not designed in a way that is known to cause seizures;
- Includes ways to help users navigate, find content, and determine where they are;
- Includes text content that is readable and understandable;
- Operates and appears in predictable ways;
- Helps users avoid and correct mistakes; and
- Is compatible with current and future user agents, including assistive web technologies.
What should businesses do?
Waiting until 2018 could have costly consequences. Law firms representing private litigants have become increasingly aggressive in recent months in pursuing retailers regarding web accessibility. A typical approach involves a letter from a law firm asserting that the retailer’s website is not accessible and offering to discuss an “agreed plan” for bringing the website into compliance. The threat typically also insists on payment of significant attorney’s fees and sometimes alleged damages as terms to settle. Even more importantly, businesses are potentially missing out on e-commerce with disabled customers who are unable to navigate their websites or mobile applications. Bottom line: Companies would be wise to evaluate the costs and potential benefits of incorporating website accessibility designs sooner rather than later, especially if a website or mobile application revamp is in your near-term business plans.