What's All the Fuss About?
I'm going to go on a little rant here, so please bear with me...
As everyone knows, lawyers can be real sticklers when it comes to wording and I'm no exception. So when I hear client after client ask me about wanting an "ADA compliant" website, I can feel the hairs on the back of my neck start to rise. And then, when I notice on Google, that the term "ADA compliant website" is the hottest phrase for any consultant in my space to draw prospective customers to our site, I just feel like I've got to set my perspective straight.
So here I go. I'm just going to say it.
CURRENTLY, THERE IS NO SUCH THING AS AN ADA-COMPLIANT WEBSITE.
Why? Because the Americans with Disabilities Act (ADA) says nothing about what a website has to look like in order to be accessible. Instead, the closest that Title III of the ADA (which covers private businesses) comes to websites is the requirement to provide appropriate "auxiliary aids and services" for individuals with disabilities. 42 U.S.C. §12182(b)(2)(A)(iii)(2020). Digging into the Department of Justice's regulations offers hardly better guidance but it does introduce the concept of "effective communication" when it states, "[a] public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities." 28 C.F.R. §36.303(c)(1)(2020).
Most of the time, you'll hear disability rights attorneys simply refer to this requirement as the "effective communication" requirement. When we think about organizations that need to provide sign language interpreters at public events or requiring a waiter to read through a menu to a blind customer, we're talking about the effective communication requirement under the ADA. And, just as a written menu needs to be made accessible, so too does a website. The problem? The effective communication requirement is very much about the needs of the customer-- so a blind visitor to a website wouldn't need to have videos captioned so long as it was accessible to her screen reader. So, really, "ADA compliance" with regard to a website really all depends on who the visitor to your website is.
Sure, a website can conform to the Web Content Accessibility Guidelines (WCAG) A/AA-- and if an organization does that, it would be pretty hard (but not impossible) for a person to sue you because your site violates the ADA. But that doesn't mean the site is "ADA Compliant". Instead, I like to think of WCAG conformance as a (relatively) "safe harbor"-- you want to build your sites to that standard because (1) it takes care of the needs of the vast majority (but not all) of people with disabilities, (2) it's a higher level of accessibility than the sites that are getting sued by plaintiffs, and (3) there frankly isn't a better set of guidelines. In my perfect world, we'd have a much clearer set of guidelines than WCAG to guide companies, but I'm happy to support it because it's the standards we have.
A Little Context: The ADA Standards for Accessible Design
I suppose the mistake people make about "ADA compliant" websites is natural enough. In the physical world, there is such a thing as an "ADA compliant" ramp, door, or handrail. That's because the ADA specifically requires that newly constructed or altered buildings and commercial facilities conform to a very exacting set of building standards. 42 U.S.C. §§ 12183, 12204 (2020). Those standards, which were updated in 2010, tell architects, contractors, and property owners exactly how to design and construct their buildings-- or potentially get sued if they don't meet those standards. If your business creates a new building that doesn't meet these standards, the Justice Department can bring an enforcement action against you even if your building hasn't been visited by a person with a disability.
With websites, we currently have no such standards. Instead, we only have the loosey-goosey "effective communication" requirements I mentioned above. And, unlike physical buildings, the simple act of putting up an inaccessible website doesn't automatically put you in the cross-hairs of plaintiffs and enforcement agencies because the design of your website still has to affect a plaintiff. For instance, WCAG Success Criteria 4.1.1 requires that web pages parse properly. By ensuring that web pages use proper opening and closing tags, that ID values are unique, and that general good coding practices are followed, web pages tend to work better with assistive technologies. But if a web page doesn't meet these requirements but still works fine with assistive technology, a plaintiff (or even the Department of Justice) would have a tough time claiming that the effective communication requirement wasn't met.
The lack of clarity over the requirements for web pages is a major driver in the wave of web accessibility lawsuits that we are seeing around the country. Businesses (and popular web hosting technologies) are reluctant to invest in web accessibility without a clear requirement to do so-- as well as clear standards to build to. And this just leaves them wide open to attacks from the plaintiff's bar. Most frustrating of all is that popular platforms that small businesses commonly use to make websites (e.g. WordPress, Shopify, etc.) don't do nearly as good a job as they could to make it easier to make an accessible website-- so, again, small businesses are left wide open to web accessibility lawsuits.
It Didn't (and Doesn't) Have to Be this Way
Obviously, it's important for there to be a clear requirement for web pages to be accessible. As most folks know, the Justice Department started to create web accessibility regulations in this area back in 2010, but this effort was scuttled in 2016 by the Trump Administration despite popular support by both the business and disability communities. Since then, the number of Federal web accessibility lawsuits against small businesses has grown from a few hundred to over 4,000 this year.
Over the weekend, I blogged about a new bill introduced in Congress with bipartisan sponsorship: the Online Accessibility Act. This bill would effectively end the wave of web accessibility lawsuits by requiring complaints to go through the Department of Justice first. On the other hand, it might dramatically increase the fines for having an inaccessible website. All this is uncertain, however, until we a final version of the bill becomes available. As I mentioned in my post, while clarifying coverage of web sites is useful, there is an even stronger need for clear standards. If that does happen, then maybe we really can talk about "ADA compliant" websites and I'll be able to stop grumbling.
In short, there are really only two entities that can clarify this mess— either the Department of Justice or Congress. Without either clear regulations (DOJ) or legislation (Congress) clarifying how the ADA affects the internet and what the standards should be, talking about ADA compliant websites doesn’t make sense. In this regard, I think we can all agree that this should be an easy item for the Biden Administration to take care of.
What About WCAG?
Ask anyone in web accessibility about what organizations should build to and the answer will always come back that organizations need to develop to WCAG A/AA. But this isn’t because there is anything in the law that requires them to build to WCAG. Instead, the reason is that plaintiffs and the Department of Justice have universally used WCAG 2.0 A/AA as their yardstick in settlement agreements. That last part (“in settlement agreements”) is critical because it means, (1) there is nothing guaranteeing that they will use it in the next settlement agreement but (2) until they change their minds, Justice will continue to use WCAG as the “goal” for organizations interested in web accessibility. It’s not a standard (like the ADA Standards for Accessible Design). It’s not a best practice (that’s too aspirational). I just describe it as kind of like a safe harbor.
Great. So if you build to WCAG 2.0 A/AA, you’re safe then and you don’t have to worry about your website? Well, not exactly. In terms of your website, it’s probably true that a plaintiff would have a hard time suing you if you built it to WCAG 2.0 A/AA. But there are still plenty of people with disabilities who may not be able to fully accommodated even if your site meets WCAG. And, in that case, the individual-based requirements like “effective communication” and “reasonable modification of policies” come into play. But, for most organizations, there’s a business name for these kind of accommodations and it’s called “good customer service.” As long as organizations with accessible websites also exercise common sense and meet the needs of their customers with disabilities who can’t use their website, they’ll be fine.
What do those common sense steps look like? Providing an Accessibility Statement that identifies alternate means of reaching the same goods and services that are available through the website directly. While posting a customer service telephone number by itself may not protect a company from a web accessibility lawsuit, posting that telephone number (with hours of operation) and having an WCAG 2.0 A/AA website should provide about as much risk protection as any company can expect to do-- especially in the absence of clearer requirements from either DOJ or Congress.
What's the Bottom Line?
It's been a crazy week and I apologize that I haven't been able to give this subject the attention it deserves. Now that there is a change of Administrations, things should hopefully change and DOJ will be resume its Title III rule making to add clarity to the web accessibility requirements. Short of an Act of Congress, that is the only way we are going to have the clarity to say what is an "ADA-Compliant" website. In the meantime, just build to WCAG 2.1 A/AA and make sure to create an Accessibility Statement that provides an alternate mean to your goods and services.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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