“Compliance” is a word I’m not a fan of. The reasons are many, but the most important reason is that it puts people into the mindset of “What am I required to do?” vs. “What should I do?” – and the latter mindset is the true path to risk mitigation. When it comes to the Americans with Disabilities Act (ADA), the dirty secret is that there are no specific technical requirements for any website. There are no standards which apply to the ADA and unless you’re a State or Local Government, there is no specific reference to website accessibility. Despite claims you may hear otherwise, the unfortunate truth is that there is nothing in the ADA Regulation itself that says you must conform to WCAG or any other technical standard. This is a long-standing source of frustration for accessibility advocates in the United States. Let’s unpack this a little more.
Laws against discrimination on the basis of disability in the United States
There are a number of laws in the United States that prohibit discrimination on the basis of disability. Among them are:
- The Rehabilitation Act
- Americans with Disabilities Act
- Air Carrier Access Act
- Fair Housing Act
- Individuals with Disabilities Education Act
- Twenty-First Century Communications and Video Accessibility Act (CVAA)
- and more
Among them, only the Rehabilitation Act (Specifically, Section 508 of the Rehabilitation Act) actually has any specific technical requirements. When it was Amended in 1998, the technical provisions and other additions were made to ensure that EIT (Electronic & Information Technology) is accessible for both members of the public and federal employees to such technologies when developed, procured, maintained, or used by federal agencies. Even the CVAA, which is a regulation specifically about technology and accessibility, does not reference any specific technical standards.
Within ADA, there are 3 “Titles”
- Employment (Title I)
- State and Local Governments (Title II)
- Public Accommodations and Commercial Facilities (Title III)
Nowhere in any of the 3 Titles is EIT/ ICT accessibility specifically mentioned except in associated information.
Title II “protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities.” The DOJ has been pretty proactive in enforcement of Title II as part of Project Civic Access. In their view, if there’s a “service, program, or activity” offered by the State & Local Government, it must be accessible – and that includes any associated EIT/ ICT component. But there are absolutely no technical standards cited, apart from a discussion referencing WCAG that is located in Supplementary Information attached to the Final Rule submission.
Title III, which covers places of Public Accommodations, is essentially the same in this respect. In the Supplementary Information they say “Although the language of the ADA does not explicitly mention the Internet, the Department has taken the position that title III covers access to Web sites of public accommodations.” but, “The Department did not issue proposed regulations as part of its NPRM, and thus is unable to issue specific regulatory language on Web site accessibility at this time.” Title III also references WCAG in this discussion.
So what are your actual, real, honest-to-goodness requirements for Website Accessibility according to the ADA? I don’t know. I’m not a lawyer but it would seem as though there isn’t any specific requirement that a website be accessible according to the ADA. In fact, some have tried to make this argument. Some have even won.
Strategically, it seems like a risky approach. The list of settlements around website accessibility is far longer than the list of defendants who’ve successfully had lawsuits dismissed. If anything, that list of settlements proves that website owners agree that it is too risky. But given the rise in drive-by demand letters, some website owners may be willing to take that risk.
There’s a better way
One of the biggest mistakes that website owners make is in assuming they can wait until they get sued to deal with accessibility. That’s like waiting until you crash before you decide to get the brakes fixed on your car. Using Extreme Accessibility, you can save a ton of money while taking a proactive approach to increasing accessibility and overall quality. Whether or not ADA explicitly states that Websites must be accessible, one thing is for sure: The DOJ believes they should be and so do a whole pile of plaintiffs. Being proactive about accessibility turns the whole thing into a non-issue.