The note withdrew an”Advance Notice of Proposed Rulemaking,” which had announced a new pair of forthcoming regulations for access of web information under the Americans with Disabilities Act. Many observers assumed (I) that the Advance Notice supposed that the DoJ was likely to issue regulations that forced websites to be accessible to users with disabilities, and (ii) having pulled the Advance Notice, the DoJ didn’t, finally, require accessible sites.
Both these assumptions are mistaken.
The Americans with Disabilities Act already required sites to be accessible to handicapped users. This was well established in U.S. courts — most recently decided by the Ninth Circuit Court of Appeals against Domino’s Pizza.
In Addition, the DoJ issued a clear statement, via a letter from the assistant U.S. attorney general, on September 25, 2018:
The Department first articulated its interpretation that the ADA applies to public accommodations’ sites more than 20 years back. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities offered by places of public accommodation be equally accessible to individuals with disabilities.
To put it differently, the courts and the DoJ made clear that their positions: an accessible website is required under the ADA.
Where does this leave commercial sites?
Obligations for Web Access
The absence of regulations governing web accessibility for business sites means there are no rules. You don’t need to adhere to the guidelines established for national sites , nor do you will need to follow the international standards for access released by the World Wide Web Consortium.
However, the Sept. 25 letter Includes broad advice on compliance with the ADA:
Absent the adoption of certain technical requirements for sites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s overall requirements of nondiscrimination and efficient communication. Thus, noncompliance with a voluntary technical standard for website accessibility doesn’t necessarily indicate noncompliance with the ADA.
Therefore, the DoJ grants flexibility in deciding how to comply with the ADA’s requirements.
You don’t have any obligation to follow web accessibility guidelines. However, you do have an obligation to provide an accessible site . Just about any accessibility consultant will admit that guidelines on website accessibility are faulty; there is not any perfect description of web accessibility. However, few would argue that the guidelines are too strict. Normally, the defects with guidelines are failures to deal with important issues.
The lack of specificity means that the determination of an accessible site isn’t through compliance with a set of rules or regulations. Instead, the availability of individual sites has been arbitrated in the courts.
Web Access in the Courts
All this has produced a large number of web accessibility suits. Based on Seyfarth Shaw, an international law firm, the amount of ADA Title III lawsuits (Title III is the section that prohibits discrimination on the grounds of disability) has risen from 4,789 in 2015 to 10,163 in 2018. The company attributes much of the increase to website availability. In 2018, there were almost 2,000 web accessibility suits filed. Before 2015, there were virtually none.
I used to tell my customers that there was little chance they would be sued for an inaccessible website. But that’s no longer true — an inaccessible website is currently a financial risk. (I’m not an attorney, however.)
Though the DoJ hasn’t established guidelines for accessible sites, companies (including ecommerce websites ) are well advised to follow W3C’s Web Content Accessibility Guidelines, version 2.1, at par AA. There are numerous reasons.
First, multiple countries, include the U.S., follow these W3C guidelines for their own sites. This will protect you at some level internationally, and will certainly not hurt within the U.S. (The U.S. government is using WCAG 2.0 rather than WCAG 2.1, the July 2018 revision. But, 2.1 offers significant benefits with not a lot of new demands.)
Second, you want to begin somewhere. Although you aren’t required to follow certain guidelines, there is no gain to inventing your own practices. Certainly there’s room for interpretation when it comes to accessibility. Butstill, following existing standards is considerably simpler and safer than creating your own.
Third, the federal government will almost certainly set regulations for internet accessibility. It is unlikely they will deviate significantly from international standards.