The Proposal Has Implications for Potential Regulations of Business Websites Too
The Department of Justice (DOJ) has issued a Notice of Proposed Rulemaking (NPRM) for the accessibility of state and local government websites and apps to people with disabilities. While obviously of interest to state and local governments, the regulations may also be of interest to businesses because, once finalized, the regulations are likely to serve as a blueprint for future regulations in the commercial sphere as well.
Overview
The Americans with Disabilities Act (ADA) governs state and local governments (Title II) and private businesses (Title III). There are currently no ADA regulations regarding online accessibility—which comes as a surprise to many, considering the plethora of website-accessibility litigation that has clogged court dockets nationwide for almost a decade. There are regulations for federal websites and apps, commonly known as Regulation 508, but those fall under the federal Rehabilitation Act rather than the ADA.
The DOJ is now considering website-accessibility regulations under ADA Title II. The proposed regulations were published on August 3, triggering a 60-day period for public comment. Historically, regulations for accessibility to physical spaces have been substantially similar under both Title II and Title III. The DOJ is likely to take a similar approach to online accessibility. So businesses as well as state and local governments might want to take this opportunity to weigh in on the proposed regulations.
Key takeaways
The proposed regulations are discussed below, but here are the key takeaways:
- The proposed regulations apply to both websites and mobile apps.
- The proposed regulations are based on WCAG 2.1 AA—the same guidelines that are already the de facto governing standards for both Title II and Title III.
- The issuance of proposed regulations does not change the current landscape. Courts consistently hold that websites and apps already need to be accessible. The regulations are only intended to provide more specificity in achieving accessibility.
- That the DOJ is only focusing for now on Title II doesn’t change the landscape for Title III.
- A critical issue for public comment is how to determine whether conformance to WCAG 2.1 AA has been achieved. The DOJ is inviting comment before choosing a specific conformance standard. Once chosen, this standard could have far-reaching consequences for website-accessibility litigation under both Title II and Title III.
Summary of proposed Title II regulations
Governing standards. The DOJ has based the proposed regulations on the Web Content Accessibility Guidelines 2.1 Level AA, promulgated by the World Wide Web Consortium. The WCAG uses “success criteria” rather than specific coding requirements. WCAG 2.1 AA is already the default guideline for website/app accessibility and is often included in settlement agreements and consent decrees. So the proposed regulations would not be breaking new ground.
Exceptions. The proposed regulations include certain exceptions, many of which are also common features of settlement agreements and consent decrees. Specifically:
- Archived web content, meaning content maintained only for research, reference, or recordkeeping and which has not changed since being placed in the archive.
- Preexisting electronic documents in specified formats that are not used to access current programs or services.
- Content posted on the website or app by third parties.
- Linked third-party content, so long as the content is not necessary for accessing the government’s programs or services.
- Public schools’ password-protected course content.
- Individualized documents that are password-protected, such as utility bills. This exception would not apply if the document is made available to review as HTML content.
There is an exception to these exceptions if a disabled person specifically requests access to any of this material.
Social media. If Title II entities use social media rather than their own websites/apps for programs and services, that content must be accessible as well. The DOJ is considering an exception for content posted to social media—including videos posted to YouTube—before the regulations take effect.
Protections if compliant. If a website or app satisfies the regulations (more on that below), the Title II entity need not take any further steps to make the website or app accessible. But that doesn’t mean the entity need not take other steps to enable a disabled person to access its programs or services.
Defenses. Under the ADA, accessibility requirements need not be strictly satisfied if doing so would pose an undue burden or fundamentally alter the program or service. Those defenses—which in practice are difficult to establish—would still apply, but accessibility would nonetheless need to be provided to the extent feasible.
Deadlines. Larger government entities (serving populations of 50,000 or more) would have two years to comply, and smaller entities would have three years. This is not an actual grace period, however, because websites and apps are already supposed to be accessible, albeit under less specific criteria.
Entity size. The DOJ considered requiring all Title II entities to meet the same deadline, while loosening accessibility requirements for smaller entities. It decided against that idea out of concern that it might result in inferior accessibility to websites and apps of smaller entities. Small businesses should take note, as the DOJ might take a similar approach when it gets around to issuing Title III regulations.
How to measure compliance. Websites and apps are constantly changing, and even when they are static, accessibility can be affected by choice of web browser and other variables. The DOJ therefore acknowledges that it would be unrealistic to expect 100% compliance (however compliance is measured) 100% of the time. Instead, the DOJ seeks a more “nuanced” approach and to that end has proposed four alternatives without expressly endorsing any of them. Specifically:
- A numerical standard of some percentage of accessibility, perhaps weighted according to the importance of the content and how often it is accessed. The DOJ views this option the least favorably.
- Limit compliance obligations where there is no negative effect on access to programs or services. In a case of technical non-compliance, the entity would have to prove that its program or service was nonetheless accessible. The DOJ views this option the most favorably.
- Presume conformance if the entity has robust policies and practices for attaining and maintaining accessibility through feedback, testing, and prompt remediation.
- “Organizational maturity,” which essentially looks to an entity’s track record. This approach is used to some extent under Regulation 508, which governs federal websites.
Public comment
The DOJ has posed 67 questions for public comment as part of the NPRM. The comment period ends on October 3, 2023. While comments are only being solicited for the proposed Title II regulations, these regulations are likely to have a significant impact on any ensuing regulations under Title III. Therefore, anyone concerned about potential Title III regulations may want to take this opportunity to weigh in now. Please note that the identity of commenters is made part of the public record.
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