Compliance with WCAG 2.1 Level AA Guidelines Required

On April 8, 2024, the U.S. Department of Justice (DOJ) issued a final rule under Title II of the Americans with Disabilities Act (ADA) establishing specific requirements for making websites and mobile apps offered by state and local governments (referred to interchangeably in this blog post as "public entities") accessible to people with disabilities. This action marks the first time the agency has adopted formal accessibility standards that expressly address online platforms. The final rule not only will result in increased compliance obligations and legal risk for public entities but also may foreshadow future efforts by DOJ to adopt similar requirements under Title III of the ADA, which would affect a broad array of businesses that provide goods and services to the public.

Background

The ADA broadly prohibits discrimination on the basis of disability in several areas of life. Title II of the ADA specifically bars state and local governments from excluding people with disabilities from their services, programs, and activities. The ADA does not by its terms address online accessibility, but over the past nearly 30 years, DOJ has consistently taken the position that Title II's nondiscrimination requirement applies to all government services, including those provided via websites and apps.

DOJ sought to memorialize its longstanding view through rulemaking efforts that date back to the Obama Administration. In 2010, DOJ published an Advance Notice of Proposed Rulemaking (ANPRM) in which the agency signaled its intent to revise its Title II implementing regulations to establish specific accessibility requirements for state and local government websites as well as its Title III regulations applicable to public (commercial) accommodations. After issuing a supplementary ANPRM in 2016, DOJ reversed course and withdrew the ANPRM. This withdrawal left unresolved questions of whether and to what extent state and local government websites and apps should be accessible to people with disabilities. In August of last year, DOJ revived its rulemaking efforts with a proceeding focused solely on accessibility requirements under Title II for public entities' websites and applications.

Final Rule

Technical Standard for Accessibility: WCAG 2.1 Level AA

The final rule adds a new subpart to existing Title II regulations that incorporates technical requirements for web and app accessibility for state and local government services, programs, and activities. Specifically, subject to certain limited exceptions described in greater detail below, websites and apps provided or made available by state and local governments must conform to the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA, a widely recognized set of voluntary standards that set forth various criteria for assessing the accessibility of web content to persons with disabilities. Although a newer version of WCAG — called WCAG 2.2 — was released last fall, DOJ determined that keying compliance to WCAG 2.1 was "the most prudent approach at this time," given the relative recency of WCAG 2.2's publication, WCAG 2.1’s continuing effectiveness as an existing standard, and the fact that WCAG 2.2 does not "deprecate or supersede" WCAG 2.1.

It is worth noting that the obligations set forth in the final rule extend beyond state and local government entities themselves. Public entities that contract with other entities to provide public services on their behalf (e.g., nonprofits that run programs on behalf of a state agency) must ensure that their contractors comply with requirements in the final rule. In addition, where a public entity has engaged a third party to provide web or app content (e.g., a state agency that hires a web developer to design its website), the public entity must also ensure that the content provided by the third party complies with WCAG 2.1 Level AA.

Exceptions

The final rule provides several limited exceptions that excuse noncompliance with the rule's terms in certain circumstances:

• Categorical Exemptions: The following five categories of content are not required to comply with WCAG 2.1 Level AA: (1) archived web content; (2) preexisting conventional electronic documents, unless such documents are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities; (3) content linked to or posted by a third party, unless the public entity is using the linked content to offer its services or the third party is posting due to contractual, licensing, or other arrangements with the public entity; (4) conventional electronic documents that are about a specific individual, their property, or their account and that are password-protected or otherwise secured; and (5) preexisting social media posts. However, the final rule does not override or otherwise modify existing Title II requirements to provide people with disabilities with reasonable modifications and auxiliary aids and services. For example, although a public entity would not need to make archived web content compliant with WCAG 2.1 Level AA on an affirmative basis, if a specific person with a disability requested access to such archived content, the public entity would need to provide the requestor with an accessible copy of the content (e.g., screen reader compatible) consistent with existing Title II requirements.
• Fundamental Alteration and Undue Burden: Compliance with WCAG 2.1 Level AA is not required under Title II to the extent such compliance would result in a fundamental alteration in the nature of a public entity's service, program, or activity or in undue financial and administrative burdens on the public entity.
• Conforming Alternative Versions: A state or local government may have two versions of the same web content or content in a mobile app: one version that is not accessible and another version that is accessible and provides all the same information and features. The second version is called a "conforming alternate version." The final rule provides that conforming alternate versions of web and app content can be used as a means of achieving accessibility, but only when technical or legal limitations make it impossible to make the full content directly accessible.
• De Minimis Noncompliance: Public entities will be deemed to have satisfied their obligations under the final rule where they can demonstrate that noncompliance has such a minimal impact on access that it would not affect the ability of people with disabilities to use the public entity's web content or mobile app to access the same information, engage in the same interactions, conduct the same transactions, and otherwise participate in or benefit from the same services, programs, and activities as people without disabilities, in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use.
• Equivalent Facilitation: The final rule gives public entities the flexibility to demonstrate that their use of other designs, methods, or techniques as alternatives to WCAG 2.1 Level AA provides substantially equivalent or greater accessibility and usability of the web content or mobile app. For example, the final rule acknowledges that WCAG 2.2 Level AA and WCAG 2.1 Level AAA satisfy the equivalent-facilitation standard because those both include all of the criteria that appear in WCAG 2.1 Level AA (in addition to other criteria not found in WCAG 2.1 Level AA).

Compliance Deadlines

The final rule will take effect 60 days after it has been published in the Federal Register. Public entities must comply with the rule in accordance with the following timelines:

Implications for Title III

Although the final rule is technically limited in application to public entities, DOJ's recent rulemaking may presage further action with respect to private businesses' web and app accessibility under Title III of the ADA. Title III prohibits disability discrimination in "places of public accommodation," which include a wide variety of private businesses that offer goods and services to the public (such as banks, hotels, and theaters). Like Title II before the issuance of the final rule, Title III does not expressly contemplate web and app content, and for years, there has been disagreement among courts across the country as to whether Title III can be understood to apply beyond brick-and-mortar locations. To the extent DOJ were to apply its reasoning in the final Title II rule to Title III, many businesses that offer goods and services online would be formally required to comply with WCAG 2.1 Level AA, providing further incentive to private plaintiffs, many of which have filed hundreds of lawsuits across the country arguing that the ADA applies to private businesses' web content and apps (even in the absence of formal regulations to this effect). As a result, businesses with an online presence should work toward achieving and maintaining WCAG compliance in order to mitigate potential legal risk under the ADA.

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