Equal Access in the Digital Age: OCR Ramps Up Investigations into Website Accessibility

by Shipman & Goodwin LLP

Consider the fact that we now live in a digital age, with limitless information at our fingertips, accessible (to many of us) with a few keystrokes or a simple voice command into our now ubiquitous cell phones. Now consider that, upon their passage, neither Section 504 of the Rehabilitation Act (“Section 504”) nor the Americans with Disabilities Act (“ADA”) (passed in 1973 and 1990, respectively) anticipated the explosive growth and everyday reliance we now, almost unconsciously, place upon that accessibility to information through the internet.  As noted in an earlier post, the juxtaposition of these realities have spurred the United States Department of Education’s Office for Civil Rights (“OCR”) recently to launch hundreds of administrative investigations into allegations that educational institutions’ websites and web-based applications are inaccessible to individuals with disabilities.

OCR is the agency responsible for enforcing Section 504 and the ADA, and, despite the fact that neither nondiscrimination law explicitly refers to or regulates internet technologies or websites, OCR has taken the position that websites not in compliance with relevant industry standards regarding accessibility (i.e., Web Content Accessibility Guidelines 2.0, level AA, and the Web Accessibility Imitative–Accessible Rich Internet Applications Suite 1.0) are not in compliance with the requirements of Section 504 or Title II of the ADA.

Educational institutions finding themselves on the receiving end of these complaints are often blindsided by the requirements, especially since there has been no legislation or regulation incorporating the industry standards; rather, OCR’s position relies upon an inferential leap between the spirit of federal nondiscrimination laws and dense, often technical, industry practices. Be that as it may, it is expected that the U.S. Department of Justice (“DOJ”) Civil Rights Division will (eventually) develop and issue regulations, though such development has been continuously delayed for years.

During the past few months, we have seen a spike in the frequency of OCR investigations of complaints against public school districts as well as institutions of higher education receiving federal financial assistance. We therefore encourage all educational institutions subject to Section 504 and/or Title II of the ADA to undertake comprehensive review of their websites and ensure that their websites (and all website content) are accessible, according to industry standards.

Below are five tips for being proactive about your website’s accessibility:

  1. Conduct a self-audit of website content and functionality. OCR has frequently used the WAVE Web Accessibility Tool to investigate and review potential instances of inaccessibility.
  2. Ensure that your webmaster or content developers become familiar with the relevant industry standards. These standards (known as the Web Content Accessibility Guidelines 2.0, level AA, and the Web Accessibility Imitative Accessible Rich Internet Applications Suite 1.0) are incorporated as benchmarks for measuring compliance in most OCR resolution agreements concerning website accessibility.
  3. Similarly, ensure that any third-party vendor is aware of, and utilizing, these standards. Ask questions and receive assurances during any relevant RFP process.
  4. Post a clear notice on your website indicating the correct person to contact in the event an individual with a disability finds that any content is inaccessible.
  5. Watch out for common problems: All written content (including image ALT tags) should be legible to those individuals using a screen reader. Videos with dialogue should be captioned. Ensure that text has an appropriate level of color contrast, and that all content can be accessed via keyboard alone.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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