The number of ADA digital accessibility lawsuits increased exponentially over the past few years. That number exceeded 4000 in 2021 alone. In most of these cases, courts ruled that the ADA does cover websites by considering them to be places of public accommodation. Case law and other non-regulatory sources affirm that the ADA should extend to websites. However, the ADA language is not specific. There is no language stating websites should be accessible. Nor are there rules for how organizations should accomplish the task. In contrast, the ADA has specific and extensive rules on how businesses must make their built environment accessible. Without clear digital accessibility guidelines, many companies claim they are not informed enough to make their websites compliant with the ADA.
Earlier this month, the American Foundation for the Blind, along with 180 other disability-related organizations, sent a letter to the Department of Justice (DoJ). The letter requested that the DoJ finalize digital accessibility rules and regulations. The National Federation of the Blind, the National Disability Institute, and the Advocacy Institute are some of the 180 organizations that signed the letter.
This isn’t a new request. The DoJ introduced proposed rulemaking for digital accessibility guidelines under Titles II and III of the ADA nearly 20 years ago, but the proposal was withdrawn in 2017.
History of digital accessibility guideline progress
1990: The ADA
When the ADA passed more than 30 years ago, the internet was in its infancy. Lawmakers couldn’t foresee how integrated into daily life the internet would become. However, they left the wording intentionally vague. They knew that technology had the potential to expand further than they could predict. They hoped to ensure the ADA could be interpreted to prevent discrimination as the world progressed. The ADA preamble even includes instructions that “the regulations should be interpreted to keep pace with developing technologies. (28 CFR part 36, app. B.)”
In an effort to update the ADA, lawmakers issued an Advanced Notice of Proposed Rulemaking (ANPRM) in 2004. The ANPRM included a request for the public to comment on what issues should be expanded or addressed in the upcoming ADA update. The DoJ received comments from many disability groups and members of the public. These requests urged them to include web accessibility regulations, which weren’t part of that revision.
Based on the comments received about web accessibility requirements from the 2004 ADA update, the DoJ requested additional input specifically on that issue. The DoJ issued another ANPRM in 2010. According to the announcement, “The Department of Justice (Department) is considering revising the regulations implementing title III of the Americans with Disabilities Act (ADA or Act) in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with disabilities.”
The notice also stated that the Department considered revising regulations regarding state and federal organizations covered under Title II. The public was invited to submit their comments on the potential web accessibility requirements for six months following the notice. This ANPRM was withdrawn in 2017 before any regulations were finalized (see below). Countless hours were spent by these disability organizations developing usable regulations to define what should be required as part of their public comments.
2016: Letter from the National Council on Disabilities
The National Council on Disabilities submitted a technology-focused report to both government and private industries. The report included a “recommendation that DOJ’s rule should reinforce in plain language that the ADA relates to the Internet and incorporate WCAG 2.0 Level AA standards.”
2017: Notice of Withdraw
The 2010 proposed web accessibility rulemaking was officially withdrawn. The DoJ cited that they were evaluating whether promulgating regulations around web accessibility are “necessary and appropriate.” The DoJ claimed that “Such an evaluation will be informed by additional review of data and further analysis.” They also said that they would “continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”
2018: Letter from the Department of Justice
In 2018, Congressman Ted Budd, along with 103 other members of Congress, sent a letter requesting digital accessibility guidelines. In a response from the Assistant Attorney General (AAG) of the US Department of Justice, the DoJ again confirmed that the ADA does apply to websites. The AAG said, “The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.” The response goes on to state that “the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.”
2020 and 2021: Online Accessibility Act
In 2020 and again in 2021, members of Congress introduced a proposed Online Accessibility Act. It was presented as a way to “expand” the ADA’s coverage to include websites. However, it actually limits potential website accessibility enforcement. The proposed act suggests creating different, limited enforcement mechanisms exclusively for digital accessibility. Additionally, it outlines an extended administrative process that would occur before a lawsuit could be filed. Finally, the proposed act allowed businesses to offer “alternative means of access,” which would result in the undesirable “separate but equal” status for people with disabilities.
The goal of the proposed act was to provide clear guidance for businesses and reduce litigation. It does not, however, as currently written, effectively reduce the NEED for litigation. The proposed act only offers a less effective remedy for inaccessible digital content. That solution would result in a much longer process for people with disabilities to have their needs met. It also narrowly covers only public-facing websites and apps, leaving out intranet sites and other important resources workers may need to be successful employees. The 2020 bill failed to pass, but an identical version was reintroduced in 2021. The 2021 version was referred to the Subcommittee on Consumer Protection and Commerce.
2022: AFB Letter to the DoJ
COVID increases the urgency for an accessible digital experience
Clearly, the recent letter from the American Foundation for the Blind does not express a new request. The COVID pandemic forced many businesses to increase their virtual presence, and in their haste, many neglected to take accessibility into consideration. Many people, including those with disabilities, could only access products and services during quarantine online. Inaccessible websites prevented people with disabilities from getting the products and services and violated the ADA.
The letter points out that 20% of participants in a recent survey found a telehealth platform to be inaccessible with their assistive technology. Sixty percent of surveyed educators said their blind and low-vision students couldn’t access class materials on virtual learning platforms, while half of the employees who responded to another survey said they had accessibility difficulties filling out digital onboarding paperwork.
Unclear requirements create confusion and prevent accessibility
For the built environment, specifications and regulations for how, where, and how accessibility requirements must be met are very clear. Those regulations outline, for example, how many handicapped parking spaces are required, how many accessible restroom stalls, elevators, ramps, and more. The regulations also include physical specifications such as size, the height of buttons, counters, railings, etc. Building and planning regulations are specific, so organizations know exactly what is needed.
Because the ADA lacks clear guidelines about digital accessibility, companies are often at a loss. They aren’t sure what is needed to make their websites and digital documents accessible. It is difficult to make something accessible if you have no clear definition for what “accessible” is. For many, if they can’t be certain they can meet requirements for compliance and protect themselves from lawsuits, they are unwilling to take on the task. Additionally, if organizations are uneducated about what constitutes “accessible,” they can make unfortunate choices about solutions.
Lack of guidelines leads to inferior solutions
Some companies thought they were addressing accessibility but ended up facing lawsuits anyway. For example, a number of companies have invested in digital accessibility overlays, thinking they were a simple fix to make their website accessible. The overlay plug-in creators claimed they would instantly make websites compliant. But in many cases, they did not actually make the content accessible and the website owners still faced lawsuits. (In 2020, there was more than one lawsuit PER DAY filed against companies using overlays.)
Clear digital accessibility guidelines would have allowed overlay users to more accurately evaluate the accessibility “solution” they chose. Having clear guidelines would allow companies to plan and budget more efficiently for digital accessibility projects. It would also allow them to ascertain whether their solutions would result in an accessible and compliant site. Specific digital accessibility guidelines would prevent lawsuits. Companies would be more likely to address accessibility knowing their efforts achieved the desired result – avoiding lawsuits and including everyone.
Clear digital accessibility guidelines mean easier compliance
The AFB urges the DoJ to finish the job they started years ago. It states, “As the COVID-19 pandemic has made abundantly clear, we live in a society that increasingly lives and works through digital tools and online spaces. When websites and applications are inaccessible, people with disabilities cannot apply for jobs, work efficiently, attend school, access healthcare, schedule a ride, shop, find public health information, apply for public benefits, and more.”
The letter concludes by asking the DoJ to finalize concrete website accessibility regulations by the end of the current administration. Clear, consistent, indisputable guidelines would benefit everyone. It would benefit organizations trying to reach as many people as possible while avoiding digital accessibility lawsuits. Most importantly, it would allow people with disabilities full access to the same goods, services, and information as everyone else.
To learn more about digital accessibility regulations, lawsuits, and handling complaints, see the additional blog posts below.
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Tammy Albee | Director of Marketing | Equidox Tammy joined Equidox after four years of experience working at the National Federation of the Blind. She firmly maintains that accessibility is about reaching everyone, regardless of ability, and boosting your market share in the process. "Nobody should be barred from accessing information. It's what drives our modern society."
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