ADA Web Site Compliance Still Not a Thing

Me with an awkward smile giving a thumbs-up; there is a label pointing to my head that reads “Not a lawyer”, and another pointing to my thumb that reads “Thumb”.
Photo courtesy Steve Faulkner, taken outside the CSUNATC 2022 venue after we had chicken and rice, free from the food desert of the venue.

Who has two thumbs and is not a lawyer?

For years I have worked with clients who refer to digital/web accessibility as ADA work. They have talked about ADA testers, ADA reviews, ADA requirements, and so on. My efforts to correct that have been ruined by overlay vendors who promise ADA compliance in their marketing materials.

Except the ADA is silent about the web.

Mini-Timeline

There is a good reason why the ADA is silent about the web. The Americans with Disabilities Act (ADA) was signed into law on 26 July 1990. It borrowed from the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973.

The very first web browser, WorldWideWeb, which was created by the inventor of the web, was released on 25 December 1990. Five months after the ADA was made the law of the land (minus one day). You can still download it for NeXT systems from the evolt.org browser archive.

The ADA does not talk about the web because the web did not exist yet.

Other U.S. Laws

Section 504 of the Rehabilitation Act of 1973 extended civil rights to people with disabilities as well as requiring reasonable accommodations as needed. However, this applies to federal agencies, though it includes organizations that receive federal funding. Generally this covers federal employment as well as access to federal programs. It is also not focused on digital accessibility given its age. It is also not part of the ADA.

In 1986, Section 508 amended the Rehabilitation Act of 1973, failed, and then came back in 1998 with enforceable requirements. Though it only applies to the government (procurement, mostly). In 2017, the 508 Refresh aligned Section 508 with WCAG 2.0 at Level AA and, most importantly, is still not part of ADA. Nor is Section 255 of the Communications Act, which I am ignoring here owing to its focus on telephony, though it is often referenced alongside Section 508.

The 21st Century Communications and Video Accessibility Act (CVAA), as its name implies, is far more current. Signed into law on 8 October 2010, three years after the iPhone debuted, and covers communications access and media (video) accessibility. Importantly, it has no technical guidelines but is generally open-ended. It is also not part of the ADA.

The Air Carrier Access Act of 1986 (ACAA) was updated in 2013 to address not just bathrooms, service animals, and luggage, but also web sites and kiosks. By December 2016, the entirety of an airline site had to be accessible. The web sites and kiosks final rule cites WCAG 2.0 Level AA. This law is also not part of the ADA.

In fact, there are enough laws related to accessibility in general that the ADA web site has a disambiguation page.

Why Has the ADA Not Been Updated?

Momentum. As in, momentum to update the ADA had finally built up, then it was suddenly lost.

I am over-simplifying, of course, but I refer you to the opening statement of this post. I am not a lawyer; I am not a lawmaker. I am just a guy with a keyboard and some grump.

On 28 February 2022, 181 disability organizations wrote a Joint Letter to Enforce Accessibility Standards to the head of the US Department of Justice (DoJ) Civil Rights Division. The letter asked for enforceable online accessibility standards by the end of the current Administration:

In 2016, the National Council on Disability (NCD) recommended that the Department of Justice issue a notice of proposed rulemaking that reinforces that the ADA applies to the internet. NCD also recommended that multiple agencies complete existing rulemakings and initiate new rulemakings on accessibility of various types of information and communication technology (ICT), including web content, applications, hardware, and software. The absence of digital accessibility regulations in the intervening time period has resulted in persistent exclusion of people with disabilities from digital spaces covered by the ADA.

What We Got Instead

On 18 March, the US Department of Justice put out a release, perhaps as a response to the open letter, titled Justice Department Issues Web Accessibility Guidance Under the Americans with Disabilities Act.

That release points to a resource at ADA.gov titled Guidance on Web Accessibility and the ADA. While the URL is beta-dot (suggesting it is temporary), it still demonstrates that the US Federal Government is taking a position on how WCAG and Section 508 (which incorporates WCAG 2.0) apply.

That position, however, is anemic.

It addresses state and local governments (Title II) with this conclusion:

For these reasons, the Department has consistently taken the position that the ADA’s requirements apply to all the services, programs, or activities of state and local governments, including those offered on the web.

It then addresses public-facing businesses (Title III) with this conclusion:

For these reasons, the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.

When you wander into the section How to Make Web Content Accessible to People with Disabilities, you are greeted with this:

Businesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication. But they must comply with the ADA’s requirements.

The Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.1

The DoJ confirms what we had already guessed by now — as a law it does not mandate WCAG. Certainly not with the word flexibility for compliance.

While it cites WCAG and Section 508, the document never explicitly states which version of WCAG it considers appropriate. But since the document is essentially kicking this back to case law, we can look at those referenced in the press release for insight:

[T]he department recently entered into numerous settlements with businesses — including Hy-Vee, Inc., The Kroger Co., Meijer, Inc., and Rite Aid Corporation to ensure that websites for scheduling vaccine appointments are accessible.

Each of those settlement agreements explicitly identifies WCAG 2.1 Level AA.

A Tiny Concern

The document uses the word “overlay” once:

Checking for accessibility. Automated accessibility checkers and overlays that identify or fix problems with your website can be helpful tools, but like other automated tools such as spelling or grammar checkers, they need to be used carefully. A “clean” report does not necessarily mean everything is accessible. Also, a report that includes a few errors does not necessarily mean there are accessibility barriers. Pairing a manual check of a website with the use of automated checkers can give you a better sense of the accessibility of your website.

I don’t think the guidance means overlays in the context where I (and others) have repeatedly shown overlays to be ineffective. Given that overlays have lost cases for their clients, and in some cases are explicitly banned in settlements, the case law should continue to prove to be an effective bulwark against overlays as we in the industry know them.

What to Do?

If nothing else, this statement from the DoJ is the most visible support for WCAG 2.x and the ADA that practitioners have gotten. While explicit rules updates would be far better, we can at least show this to our clients as an example that the DoJ considers web sites beholden to the ADA. Even if the law itself still does not say so.

Remember, I have two thumbs and am not a lawyer.

Additional Reading

Other than the U.S. Access Board link, I am not linking posts or articles that regurgitate the Guidance and which offer no new insights. I have no interest in promoting the noise from agencies clamoring for clicks with quick takes.

Update: 26 March 2022

It is now a week later and the big accessibility consultancies who have chosen to blog about this are mostly using it as I expected — indirectly stating you must hire them to meet the ADA, otherwise you could get sued. Few seem interested in pointing out how half-hearted an approach this was from DoJ. At some level this suggests the accessibility consultancies’ priority is not people, but revenue.

Update: 1 July 2022

It has been 10 years since the Department of Justice filed a biennial report on the federal government’s compliance with accessibility standards for information technology, a bipartisan group of concerned senators say. The reports are required by Section 508 of the Rehabilitation Act.

They are required to issue a report every two years. The last report was delivered in 2012, and it looks the only other years covered were 2004, 2001, and 1999. The letter from seven senators to the Department of Justice outlines some of the last documented failings and asks questions about what to expect.

The concern here is that if the DoJ cannot follow its own reporting guidelines, it sends the wrong message to those hoping the DoJ will weigh in for other accessibility legal efforts.

2 Comments

Reply

You made an article claiming ADA isn’t being enforced enough and the laws are vague, implying it only applies to gov services. Yet thousands of small biz are being sued from trolling law firms for said ada compliance. With all due respect, have you been living under a rock? If not, did I just misunderstand this article? I’m a little confused to be honest, since ada compliance is definitely a thing that’s being forced down everyone’s throats, for better or for worse.

In response to John. Reply

You made an article claiming ADA isn’t being enforced enough…

I did not say that. I quoted a letter from 181 disability organizations asking for enforceable online accessibility standards to essentially be rolled into ADA.

…and the laws are vague, …

The ADA is vague on online accessibility standards, primarily because it pre-dates the web. This somewhat applies to the others I listed (that are not Section 508 and Air Carrier Access Act).

…implying it only applies to gov services.

I made no implication about the ADA. I explicitly outlined (and linked) Section 504’s and Section 508’s relation to government.

With all due respect, have you been living under a rock?

Yes, it is where the tastiest grubs are stored.

If not, did I just misunderstand this article?

I think so?

To your point, there are indeed a lot of ‘drive-by’ accessibility lawsuits. 60 minutes aired a terrible hit-piece a few years ago. National Federation of the Blind engaged its constituency to identify how this practice harms everyone. Overlay vendors have used this fear in their marketing efforts, even lying about ADA compliance. This is complicated by anecdotal reports that some drive-by serial filers are now looking at sites with overlays, since the overlay vendor may have deeper pockets.

As the opening image demonstrates, I am not a lawyer. However, my general advice is if someone comes seeking financial damages (compensatory or punitive relief) instead of trying to get the barriers addressed (injunctive relief), it is probably frivolous and quality counsel may get it dismissed (which leaves room to maybe recoup attorney fees?).

Prior to a lawsuit, as I outline in my post Sub-$1,000 Web Accessibility Solution, with some small steps you can create an effective bollard should a drive-by filer come your way.

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