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CEO at Ignite Visibility

 / October 13, 2021  /  12 min read

An unsettled website accessibility law environment creates confusion for businesses and courts over what an accessible web business is and how to make it compliant.

In the U.S., digital accessibility lawsuits continue to rise, with pushback from some circuit court judges.

New software, such as overlays, promise automatic accessibility monitoring and repairs but created new problems for persons with disabilities rather than solving them.

While some countries, such as Canada and the U.K., developed accessibility guidelines and regulations for certain types of websites, there is no universal legal requirement to make any website or application work equally for everyone.

Compliance is a scary term used for intimidation and deflects from the most basic incentives to include persons with disabilities wanting unhindered access to the web.

Web Content Accessibility Guidelines, also known as WCAG, are provided online for free and are globally available to any web designer or developer.

In this article, you’ll learn:

1. Why web accessibility matters.
2. The history of the ADA.
3. Technology, accessibility, and designing for inclusion.

Access to Web-Based Buildings, Schools, Stores is a Civil Right

Most countries provide laws protecting the civil rights of disabled persons for homes, parks, businesses, and educational facilities. What is not universal is access to websites and web apps.

The internet provides global access to information, stores, education, financial institutions, music, and video, but for persons with disabilities, there can be restrictions or dependencies on assistive devices to gain unhindered access.

Even a temporary injury or momentary shock that causes us to forget our password can be a barrier to access.

We take computers for granted. They are used everywhere, including paying for items in a self-checkout and using a mobile phone to call in pizza for dinner.

All this technology does not mean everyone has access to it. It is also more likely that persons with impairments, including low vision, are unable to see the screen or reach the keyboard from their wheelchair.

Fortunately, there are standards in place that unify development with universally accepted protocols.

We know these standards as the World Wide Web Consortium, (W3C) and accessibility guidelines known as Web Content Accessibility Guidelines (WCAG).

In the U.S., Section 508 is the policy governing accessible digital design for government, education, and any institutions that are officially tied to them.

Federal websites must follow the 21st Century Integrated Digital Experience Act.

Research Your Country

It is important to understand the laws and recommendations for web accessibility for your own country.

Both the U.S. and the U.K. refer to non-government-related websites as “public” and “public sector” entities, allowing the legal system to hear cases brought by persons with disabilities who find themselves unable to use a public-facing business website.

In the U.S., this is referred to as the ADA Title III, Public Accommodations and Commercial Facilities. It has not been updated to include websites and online web applications.

Europe updated its E.U. Web Accessibility Directive in September of 2018, making all public sector websites and applications in E.U. member states implement, enforce and maintain accessibility standards or risk fines and legal penalties.

Of their recommendations, accessibility statements are one that is gaining in popularity for everyone wanting to show initiative.

Canada’s Bill C-81, known as the Accessible Canada Act, was created to proactively identify, remove, and prevent, barriers to accessibility in areas that fall under federal jurisdiction.

One popular guideline for businesses to use when deciding whether to develop accessible websites is that if there is a physical business that must legally meet accessibility requirements for public access, their website version should, too.

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, in the U.S. there are no formal laws to enforce them. This is because Title III of the ADA does not define “public accommodation” to include websites.

The Department of Justice, while expected to enforce the ADA and may interpret the ADA to apply to public websites, declines to issue regulations.

Going back to civil rights, ethically many courts find in favor of plaintiffs prevented from access to a business that is not designed to accommodate their disability.

This includes employers and equal hiring, team meetings among remote workers who require captions or screen magnification, and if needed, providing software or assistive devices to enable tasks.

So why are there so many lawsuits?

On July 26, 1990, the late President George H.W. Bush signed into law the Americans with Disabilities Act (ADA), which is a civil rights law prohibiting discrimination on the basis of disability.

Its purpose is to protect the rights of individuals with disabilities for employment, access to state and local government services, places of public accommodation, transportation, and more.

On July 26, 1991, the DOJ issued its final rules for following Title II and Title III but neither addressed website accessibility.

Title II of the ADA applies to state and local government entities. It protects individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by state and local government entities. What we refer to as Section 508 web accessibility falls under Title II.

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations. These are businesses that are generally open to the public and there are 12 categories, including schools, recreation, offices, and medical buildings.

Your ecommerce website and public mobile applications fall under Title III.

Section 508 & Title II

In June 2003, in recognition of how the internet was transforming interactions between the public and governmental entities, the DOJ published Accessibility of State and Local Government Websites to People with Disabilities.

They did this to provide state and local governments guidance on how to make their websites accessible and ensure that persons with disabilities have equal access to the services, programs, and activities that are provided through those websites.

Title III was not included with this update. The document itself has not been updated.

Government and public website accessibility confuse companies that conduct online business with the government and schools with websites, such as universities that accept federal financial aid, because there is little straightforward guidance.

The Website Accessibility Roller Coaster Known as ANPRM, NPRM & SANPRM

There have been attempts to add website accessibility enforcement support over the years.

Each has been met with failure.

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 by publishing an Advance Notice of Proposed Rulemaking (ANPRM) and inviting public comment.

On June 17, 2008, the DOJ issued a Notice of Proposed Rulemaking to adopt the revised 2004 ADA/ABA Guidelines and revise Title II and Title III regulations.

The 2008 NPRM addressed the issues raised in the public’s comments to the 2004 ANPRM and sought additional comments.

Neither the 2004 ANPRM nor the 2008 NPRM included a proposal for web accessibility provisions despite public comments urging the DOJ to issue web accessibility regulations under the ADA.

The ADA Amendments Act of 2008 went into effect on January 1, 2009.

Among other things its purpose was to make updates to the 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.”

On July 26, 2010, the DOJ published an ANPRM titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.

This was the first attempt to include website accessibility enforcement.

On September 15, 2010, Titles II and III were revised again and called the 2010 ADA Standards for Accessible Design. They did not include web accessibility.

Hopes were raised when in the fall of 2015, the DOJ released a Statement of Regulatory that included three paragraphs on website accessibility.

This document addressed the realization that it became impractical to separate Title II (Government websites) and Title III (public websites) because they are often blended together.

The document states:

“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 state that they “will be publishing separate NPRMs addressing website accessibility pursuant to titles II and III of the ADA. The Department expects to publish the title II NPRM early in fiscal year 2016.”

That never happened.

In April 29, 2016, the DOJ issued a new SANPR called Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.

It is one of four ADA rulemaking documents that were removed and are now archived.

This particular document provides real insight into what’s complicating matters and why the government is unable to come up with any formal legislation on website accessibility.

It’s worth reading if you want to understand the history and read the public comments.

Next, the House of Representatives introduced H.R.620, ADA Education and Reform Act of 2017 which stalled in the Senate.

There were many issues with it, from costs to the lack of what accessibility standards would be enforced, and most importantly, the responsibility for resolution fell to the disabled plaintiff, not the business.

On June 20, 2018, 103 members of the U.S. House of Representatives drafted a letter to then-Attorney General of the Justice Department, Jeff Sessions, regarding the flood of lawsuits and the ease of litigation when there are no legal standards to follow.

On September 25, 2018, the DOJ responded in a letter to Congressman Ted Budd. It references the withdrawal of the four rulemaking attempts to address website accessibility and the ADA and why.

The DOJ is “evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.”

It references two Executive Orders covering the reduction of regulations and controlling costs.

In addition, this section caught the attention of law firms:

“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.”

In the U.S., it becomes a moral choice to include or exclude persons with disabilities or impairments, permanent or temporary, from using a web-based business or web app.

Within the first hour after President Biden took office, the new, completely redesigned, accessible Whitehouse.gov was launched, complete with an accessibility statement.

Design for Inclusion

Should you be concerned if your business is online? Absolutely.

While ADA lawsuits continue to rise, the outcomes are anything but in agreement. The Ninth Circuit Court of Appeals ruled that Domino’s website is covered by the ADA.

They continue to fight this ruling.

Supermarket chain Kroger was let off the hook by a New York judge 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.” – UsableNet Midyear 2021 Report 

Design for inclusion is a good business decision.

From a branding and reputation perspective, search engines, conversions, revenue, and customer service brownie points, designing for accessibility is strongly recommended.

Companies with digital properties that are looking for investors stand out with products that are already built to meet WCAG standards. An accessible website or web app may be your competitive advantage.

Unfortunately, left as a choice, companies routinely leave accessibility out of their development cycles because they:

• Often do not have trained employees.
• Don’t understand their target market.
• Feel it is too expensive or it drags out the timeline.
• Are simply unaware of the various needs of their users.

What are Your Next Steps?

Everywhere there is technology, there is a need to make it accessible. This has flung open the doors to anyone wanting to learn how to become a developer with ADA knowledge.

It inspired WordPress to rebuild itself so that anyone could use it to build websites. Twitter and Medium added the ability to insert alt text for images. Zoom added captions.

Android and iOS devices roll out new accessibility settings with each new device. This presents opportunities for native app development that solves more problems by removing barriers that exist on smaller devices.

Employers are hiring more persons with disabilities because they already understand what it takes to work remotely. They bring a wider 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 forcing you to include persons with accessibilities as customers, fans, readers, and clients, it makes practical sense to invest in them.

Of the 26% of Americans with disabilities, there’s a good chance you are one of them or know someone who is or will be.

For Your Reference

More Resources:

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Featured image: rawf8/Shutterstock