April 12, 2022
New Website Accessibility Guidance Creates More Confusion Than Answers
Since 2010, state and local governments and businesses open to the public have been required under the Americans with Disabilities Act (ADA) to ensure their websites are accessible to people with disabilities. Yet for more than two decades, these same businesses and governments have been operating without any clear definition for what constitutes ADA compliance for their websites. While many have been acting in goodwill to ensure access to information on the web for vision and hearing-impaired individuals, the lack of defined rules has left these entities susceptible to lawsuits for failure to comply. A catch-22.
On Friday, March 18, 2022, the U.S. Department of Justice (DOJ) issued "new guidance" for state and local governments and businesses open to the public as it relates to website accessibility under the ADA. The guidance highlights why website accessibility matters, examples of website accessibility barriers, when web content is required to be accessible, and how to make web content accessible for people with disabilities.
However, instead of creating long-awaited clarity, these new guidelines have only compounded the confusion to those in waiting. Why? Because the guidance offered by the DOJ simply reiterates the flexibility businesses and state and local governments have in complying to ADA requirements as it relates to websites. Specifically, the guidance states "[b]usinesses and state and local governments can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities."
It also mentions that among the choices to ensure accessibility of website features is the Web Content Accessibility Guidelines (WCAG), which government and private businesses have long been using as the compliance standard in private settlement agreements and what courts across the country have also been enforcing or, in some cases, ordering.
While flexibility is a plus in most situations, if we really want to make a difference in how businesses and governments specifically code and structure their websites and mobile applications to accommodate the assistive technology vision and hearing-impaired individuals need to access online content, the guidance offered must go a step further. The DOJ should consider formally adopting an accessibility standard and not leave it up to defendants to choose how they will comply. A formally promulgated and explicit standard would help guide private settlements and courts in enforcing accessibility standards.
Further, the DOJ should consider adding a pre-suit notice and opportunity to cure period to curb some of the serial lawsuits that are being filed by the hundreds every month. This may be wishful thinking, but an explicit standard is something I think both sides of the v. could agree on. Until then, businesses and governments are going to continue to find themselves in a catch-22, wondering whether they are truly in ADA compliance or whether they may be slapped with a lawsuit.
Contact Anastasia Protopapadakis
Reprinted with permission from the April 7, 2022 edition of the Daily Business Review © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or firstname.lastname@example.org