New Guidance on Web Accessibility from the Department of Justice
Last Friday, my friend Josef Pevsner was the first person to reach out to me with exciting news-- there was new guidance from the Department of Justice for web accessibility! It's available on a new beta version of Justice's ada.gov website and it's called, Guidance on Web Accessibility and the ADA.
On Monday morning, a number of my other friends contacted me with the same "great news." So I went to look at it and felt so frustrated and disappointed that I wanted to throw my computer out the window! And when I explained why I felt this way, people said that a blog post needed to be written-- and I would be the perfect person to write it.
What follows is more of a personal rant than a scholarly analysis. I cobbled this together between calls on Monday afternoon and scheduled it to go out at 9am on Tuesday morning. It just fell into place naturally; I'm hoping it conveys my disappointment and not polished elegance. I hope it reflects my personal frustration, both from having contributed to enormous positive change when I was at the Justice Department and from watching much of that work wither from neglect since leaving Justice.
Who Am I to Comment On This Topic?
I'm an old man so I like to lecture younger people about my superior view of the world. If that isn't reason enough to listen carefully to my sagely wisdom, I submit that my viewpoint is important for four other reasons. First, I wrote the last technical guidance for web accessibility back in 2003; DOJ's inability to improve that guidance 19 years later hits me really hard and I'd like to share my thoughts about why you should be disappointed as well. Second, I’ve been involved in the Federal rule-making process and so I know why DOJ could (and should) issue binding regulations and not unenforceable guidance. Third, I've been a consultant in web accessibility for the last 15 years and I have a clear sense that businesses want clear requirements from Justice and not vague guidance. And fourth, from having worked so long in this field, I can read the unspoken message in the DOJ guidance-- and it's not good.
The More Things Change, The More They Stay the Same
Back in 2003, I was an attorney at the Justice Department and I wrote the Department's last technical assistance piece for web accessibility, Accessibility of State and Local Government Websites to People with Disabilities. That technical assistance piece provided some examples of web accessibility and recommended that state and local governments make their websites accessible by following either the Web Content Accessibility Guidelines (WCAG) or the Section 508 standards. This was a time when I was in the eye of the hurricane of digital accessibility; I was helping lead the Federal government's interagency Section 508 Working Group, developing digital accessibility standards with the Access Board, and helping craft ADA policies that enshrined digital accessibility for the public and private sectors. And the 2003 technical assistance piece was one of my last finishing touches before leaving the Justice Department to move out west. In 2004, I left DOJ both sad to be leaving the best job I've ever had and also confident that my fellow attorneys at DOJ would continue to make digital accessibility a priority. Unfortunately, my confidence was misplaced.
Since then, web accessibility litigation has exploded. I believe that few people question the right of people with disabilities to access the internet—it was just a lack of clear requirements that holds businesses back. Short of Congress enacting a new web accessibility law (also not a great idea), those requirements can come in only one form: new ADA regulations for web accessibility from the Department of Justice. And, as we all know too well, Justice has completely dropped the ball with digital accessibility.
Early on, DOJ tried to make some progress. DOJ announced plans for developing new regulations all the way back in 2010 but, after several false starts, ultimately scrapped the effort in 2017. This inaction has left a guidance vacuum in web accessibility that the plaintiffs bar has been more than happy to exploit. As Jason Taylor at UsableNet reminds us, for instance, 2021 was another record-breaking year in web accessibility litigation.
Last week, DOJ issued its new technical assistance piece, Guidance on Web Accessibility and the ADA. It also provided some examples of web accessibility, described several settlement agreements that incorporated and web accessibility, and made exactly the same recommendations that DOJ made 19 years earlier: follow WCAG or Section 508. So, in almost 20 years, DOJ has given us no additional guidance on what the ADA requires for websites run by private businesses and state and local governments.
We Need Clear Web Accessibility Regulations
It’s no secret that the only answer to the avalanche of web accessibility lawsuits is clearer ADA regulations for websites. Without a clear legal mandate in the regulations, no one can reasonably expect businesses and state and local governments to build their websites to WCAG-- or any other level of accessibility. It doesn’t matter that Justice has investigated dozens of organizations under the ADA because their websites are inaccessible. DOJ can investigate hundreds of organizations under the ADA because of their inaccessible websites and it wouldn’t have the same impact as a clear mandate in regulations. DOJ could also litigate this issue and get a multitude of court rulings that web accessibility is required under the ADA and that also wouldn’t have the same impact as a clear mandate in regulations. Simply put, clear requirements get attention; abstract ones do not.
After all, why should organizations change their websites without a clear requirement in the ADA regulations? Understanding that a website can be inaccessible to people with disabilities is a difficult concept for most people to understand. Even if a business owner or civic leader understands abstract legal concepts like “auxiliary aids and services,” “effective communication,” and “program access” (which are currently part of the regulations), they likely wouldn’t think that these concepts apply to their websites. As a small business owner, I know from first hand experience that organizations face lots of competing concerns. We have to worry about privacy issues and security issues-- the kind of thing that I know very little about. Clear requirements are followed; abstract ones are not.
Another big part of the problem of web accessibility is that organizations need to rely on the accessibility features provided by content management systems (CMSs) like WordPress, CivicPlus, and Shopify. Currently, most CMS manufacturers include some basic level of accessibility, but they would likely provide a much higher degree of accessibility if the ADA regulations stated that websites needed to be accessible. I would even go so far as to predict that a clear ADA requirement would cause CMS manufacturers to compete based on their accessibility features because a more accessible CMS system helps their customers avoid an ADA lawsuit or DOJ investigation. Clear requirements create opportunities; abstract ones do not.
The real tragedy in Justice's inaction, however, is that I don't know anyone who doesn't want clear web accessibility requirements for businesses and state and local governments. Seriously, this is a no-brainer. The business community wants clear regulations. The disability community wants clear regulations. And web consultants like me want clear regulations. As long as the regulations create a level playing field and there are affordable tools to make compliance possible, every organization I've ever met is completely onboard. Well, except possibly some members of the plaintiffs bar who are making a lot of money without those regulations-- but even the more honest and reputable plaintiffs attorneys I know who really believe in positive change are behind this. Clear requirements are needed; abstract ones are not.
Just Use WCAG
What should regulations look like? I believe that they should require new and frequently accessed web content to conform to WCAG 2.1 A/AA—or to provide an equivalent level of access. While WCAG isn’t a panacea for accessibility, it is a well-understood universal design standard that is used by organizations around the world for accessibility. I’ve complained in the past about WCAG’s vagueness, but enough time has passed that there are now plenty of resources that makes it clear what WCAG requires.
Governments around the world have adopted WCAG A/AA successfully. Universities and the Federal government has also proven that WCAG A/AA is a workable standard. I couldn’t have said that twenty years ago (when I wrote DOJ’s last technical assistance piece for web accessibility) or even ten years ago (when the last web accessibility rulemaking started), but I can confidently say that now.
Because WCAG is such a common benchmark for accessibility, adopting it into the Title III regulations wouldn’t be unduly disruptive. Companies like Microsoft, Adobe, and HP provide tools that make WCAG compliance relatively easy. While accessibility regulations in the built environment often have a bigger impact on small businesses than large businesses, I think the opposite is true in web accessibility and that the impact on small businesses would be insignificant. Why? Small companies never built their own eCommerce systems and instead rely either on CMS systems like WordPress or Shopify or massive eCommerce platforms like Etsy or Amazon for their websites. By contrast, bigger customers may have to develop new platforms from the ground up.
Forty years of experience with the ADA has proven that complying with accessibility requirements never bankrupted companies, despite the prognostications and naysaying of the business community with built environment accessibility. And, for all the obvious benefits of making websites accessible, the costs of digital accessibility is trivial compared to the cost of making the built environment accessible.
The Ominous Unspoken Message: Don't Expect New Web Accessibility Regulations
I think DOJ missed an easy opportunity to strengthen its position in web accessibility instead of just revisiting past guidance. My bigger concern, however, is what isn't said in this guidance: we shouldn't expect to see new regulations in the coming year… or ever.
After all, if DOJ was going to issue new web accessibility regulations, they could easily issue a new Notice of Proposed Rulemaking (NPRM) and simply kick off the rulemaking process. Shortly after the election, my friends at Justice signaled that this was their plan—and that they would start with the (relatively easy) Title II regulation for state and local governments. So if they were still planning to stay with that plan-- or anytime in foreseeable future-- why issue guidance like this technical assistance piece now?
At the end of last year, I went out on a limb and predicted that Justice would issue a new web accessibility regulation for Title II before the end of the 2022. I’m now revising that prediction as I don’t believe that web accessibility is a priority for the Civil Rights Division during the current Administration. I would love to be proven wrong and for DOJ to issue web accessibility regulations during this Administration but I just don’t see that happening now.
It could be that I'm just reading too much into the content and the timing of the release of the new technical assistance guidance. In fact, Justice could be developing a draft NPRM for web accessibility at this very moment-- and the latest technical assistance piece just lays the foundation for that to happen in the near future. As optimistic as that vision is, I just don't see that happening because I've never seen DOJ signal its intentions for upcoming regulations through technical assistance material. Instead, technical assistance issued by the Justice Department tends to summarize or simplify existing regulations, settlements, or policies-- and everything in Guidance on Web Accessibility and the ADA is backwards-looking.
So What Can We Do Now?
I am NOT an advocate. This is a moment, however, when the Justice Department needs to be pushed to develop clear requirements in its Title II and Title III regulations that websites need to be accessible and that content needs to meet WCAG A/AA. I understand the holdup; having worked with many of the people who worked on the 2010 regulations, I know that technology and the internet is a scary and unknown area for a lot of civil rights attorneys at the Justice Department. Plus, there are a lot of other pressing issues in the Civil Rights Division to work on, such as police misconduct and voting rights. Nonetheless, web accessibility is such a vital area of civil rights and the absence of clear standards is such an enormous headache for the business community that Justice needs to be pushed to develop web accessibility regulations. Plus, it's such an easy topic with universal support.
Issuing unenforceable guidance instead of clear regulations does utterly nothing to resolve any of these problems and only illustrates how insensitive Justice is to the needs of both the business community and the disability community. When I penned DOJ's last web accessibility, I hoped that it would be a springboard for meaningful change; I never thought that DOJ would just recycle the same guidance 19 years later. It's a disappointing chapter in disability rights that I hope we can get past.
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“the impact on small businesses would be insignificant. Why? Small companies never built their own eCommerce systems and instead rely either on CMS systems like WordPress”
This is overlooking (or perhaps misunderstanding) a key difference between WordPress and proprietary platforms like Shopify or Wix – WordPress is a community driven software with hundreds of thousands of “developers” (some more skilled than others) that create the plugins and themes small business owners use on their sites. Small businesses do, in fact build their own ecommerce systems on WordPress, they just do it by cobbling together a bunch of third-party tools.
On a closed platform like Wix, it’s easier for top down control to mandate all the tools available to business owners meet WCAG. On an open platform like WordPress with many contributors and little oversight, run by volunteers, I can’t think of how all the possible tools business owners could use (many of which cost nothing) become WCAG compliant. Do we suddenly stop allowing people to give away plugins on WordPress.org or stop sharing code on Github if it’s not WCAG compliant? How could we even automate those tests?
Beyond that, there’s also the reality that a ton of accessibility errors are created by users entering content incorrectly, not by the CMS itself (or add-ons). Are we going to require professional licensing for developers and content creators that includes an exam on WCAG? Maybe not a bad idea, but does that mean it would be illegal for your cousin to build you a website if you paid him? How much would the cost of websites go up if all developers and designers needed to get and maintain a license in order to build sites?
Would it be illegal for business owners to build their own websites or add a new page to their existing website if they haven’t first proven knowledge of WCAG? Would you need to take web accessibility courses before you could purchase a domain? How would you control the knowledge required before anyone could edit content in an existing site? Could there be daily fines for WCAG violations like Ontario has written into law?
Don’t get me wrong; I want more clear regulations and I want all people to have equal access to business websites. I agree that WCAG is the best standard. I just don’t believe that more regulation will have an “insignificant” impact on small businesses, most of which have minuscule marketing budgets and would likely be priced out of having a website at all.
Good comments, Amanda, particularly around WordPress. I agree WP is the Wild West. We actually face this problem everyday as this site is obviously on WordPress– and every time we get a new update, I wonder if our house of cards is going to come crashing down. But accounting for these basic issues is where regulations come into play; the standard should be WCAG but its application is where common sense defenses (like updates to third-party plugins) in regulations come into play.
I still maintain that the difficulty and expense of teaching everyday content creators how to make web content accessible in Beaver Builder or another limited CMS editor is indeed insignificant compared to the very significant costs that businesses have long faced as part of “readily achievable” barrier removal and other duties under Title III. And most smaller online-only businesses that don’t have these responsibilities are beyond the scope of the ADA in most of this country because most courts require a nexus to a physical bricks and mortar establishment.
This is part of title 111. All businesses are accountable for this.
There have been thousands of small businesses sued over this. It is rather simple. The wild wild west is over with regards to websites and people building their own and anyone opening a company providing these services. We are contacted weekly by people that were sued and had no idea they were liable for this!
You nailed it Ken. We need clear and reasonable regulations.
Thanks Minh! Great post as well on Harty v. West Point Realty! I mentioned your great coverage in this week’s blog post.
Thoughtful comments, Ken. Well taken.