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Has the Promise Been Kept?
Each year, the National Council on Disability (NDC) releases an annual report that examines federal enforcement of disability rights laws. The report, National Disability Policy: A Progress Report, must be submitted to the White House and Congress, as mandated by law. The NDP Progress Report was shared on Oct. 31, and subtitled “Has the Promise Been Kept.” This report is actually the second part of a reporting effort addressing disabilities legislation enforcement that started in June 2000.
Published that year, Part 1, Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act, the initial report examined activities of the Department of Justice (DOJ), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), and the Federal Communications Commission (FCC).
Part 2 report examines how the DOJ, HUD, the FCC have “implemented and enforce[d]” federal disability rights law in the following decade from 2001 through 2020, requiring an update report each year.
A Generation of ADA
The most recent report’s Letter of Transmittal, addressed to the President, points out that “an entire generation of people with disabilities have grown up with the statutory rights of the ADA, the Fair Housing Act, and other laws passed during the latter part of the last century. ” Compliance no longer is something good to do; it’s expected and mandated.
The annual Part 2 reports examine the activities of the DOJ, HUD, and FCC in terms of their policy guidance, proactive and reactive strategies, investigative and enforcement actions, resolutions, communication, litigation, interagency collaboration, training and agency resources.
NDP Findings and Recommendations for Web Accessibility
Much of what is discussed relates to accessibility and inclusion in the physical space. Those elements that pertain to digital accessibility include:
- Findings that all three departments have developed documents to help people with disabilities to understand their federal rights
- A recommendation that DOJ needs to make enforcement data available so their efforts to enforce the law can be evaluated
- Findings that the DOJ has published settlements and consent decrees that have improved their transparency, but that these efforts have been inconsistent in what litigation strategies are used.
- Findings that found that the FCC is resolving all complaints without litigation but has diminished transparency as the agency has not maintained a legal record.
- An important recommendation that the DOJ should “develop regulations on web accessibility for entities covered under Title II and III of the ADA… and maintain a stronger and more consistent level of litigation around disability rights…”
- A recommendation that “Congress should require DOJ to collect and make available statistical information on disability rights complaints and enforcement as already occurs for HUD and the EEOC. ”
There are Still No Guidelines
There are currently no federal guidelines for ADA web accessibility. In 2007, the DOJ submitted an Advance Notice of Proposed Rulemaking and requested comments. A number of disability advocates participated in these comments, including the National Federation of the Blind (NFB), the National Council on Independent Living (NCIL) and American Disabled for Attendant Programs Today (ADAPT), but the regulations were never published.
In 2016, the National Federation of the Blind passed a resolution that stated, “[W]e call upon the [Obama] administration to release the regulations that will provide guidance on web accessibility as authorized under Titles II and III of the Americans with Disabilities Act without further delay; and… we urge all political and civic leaders to join with us in calling on this administration to fulfill the promise made and bring clarity to the accessibility of public information, commerce, and education in the twenty-first century. ”
Once the Trump administration took over the White House, these in-process guidelines, along with many other federal regulations, were scrapped, leaving the issue of web accessibility guidelines in the hands of the federal courts and state legislative bodies.
#ReleaseTheRegs
In 2017, HR 620, the ADA Education and Reform Act, was proposed in an effort to reduce the number of accessibility lawsuits (both in the physical and digital space). But without regulations, this act would simply have delayed or even prevented organizations from compliance. Many organizations, including the ACLU, NFB, NCIL, and ADAPT protested and a filibuster prevented the bill from coming to a vote. All of those objecting want to see clear, legislated guidelines published to make it easier for organizations and businesses to comply. The protest used the hashtag #ReleaseTheRegs.
Waiting Years for Clarity
Committees within Congress have written twice to request guidelines. In fact, more than 100 members of the House of Representatives signed the first letter, which was sent on June 20, 2018.
The DOJ responded in September 2018 with this statement:
“[A)bsent 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 specific voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA. “
The agency also maintained that it had interpreted the ADA to apply to public accommodations’ websites over the previous 20 years, saying, “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. ”
Seven Senators signed and sent a second letter to the DOJ requesting guidance this year on July 30. The letter mentioned the dramatic increase in accessibility lawsuits and varying judicial decisions on the subject.
The authors specifically asked what steps the DOJ had taken to resolve the confusion surrounding ADA compliance and websites, and asked whether:
- WCAG 2. 0 was considered an acceptable standard by which to measure ADA Title III compliance
- Businesses’ resources should be considered when evaluating whether or not they had violated 508
- The DOJ had considered intervening in any current litigation to provide clarity.
In other words, they wanted to know what the DOJ is doing to make website accessibility requirements clear, and what it is doing to prevent abuse of the legal system by both defendants and plaintiffs.
Accessibility Legislation
On that same day, eight members of the House of Representatives introduced the “ADA Compliance for Customer Entry to Stores and Services Act,” or ACCESS Act. This act would eliminate much of the uncertainty about guidelines, reduce lawsuits, and require the development of a dispute resolution program and a study of whether WCAG 2. 0 standards actually “provide reasonable accommodation for individuals with disabilities. ”
Twenty-seven states have enacted legislation or guidance regarding website accessibility, but that leaves many reliant on federal law to inform businesses of what their responsibilities are in the area of website accessibility. Many state laws and guidelines refer to Web Content Accessibility Guidelines (WCAG) for standards, and the proposed ACCESS Act may also refer to WCAG.
The lack of federal guidelines means a continuing spate of accessibility lawsuits as the courts are divided on what that web accessibility should look like.
NDP Requests Guidelines
It is of marked significance that NDP has recommended that the DOJ publish guidelines for web accessibility. It means another critical entity is requesting clarity in this area.
The question of whether the promise has been kept for web accessibility is unclear. According to the NDP, the DOJ still has work to do to provide clarity on this issue. Stay tuned for further updates.
Need help navigating compliance in the absence of clear guidelines? Equidox can help.
Tammy Albee
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."