[co-author: Tawanna Lee]
In a major development in accessibility law, the World Wide Web Consortium’s (W3C) Web Accessibility Initiative (WAI) has released the First Public Working Draft of WCAG 3.0, a new version of the international standards body’s highly influential Web Content Accessibility Guidelines (WCAG). The WCAG 2.x series, which provides accessibility standards for web content including websites and mobile apps, has had tremendous influence in U.S. accessibility law and policy, serving as the go-to standard for accessibility compliance for web content and services subject to the Americans with Disabilities Act (ADA) and statutes governing federal procurement of information and communications technology. WCAG 3.0 will be a significant departure from the 2.x series and will provide accessibility standards for more disabilities and a broader range of technologies, while also extending its reach to more technological components. The release of the First Public Working Draft of WCAG 3.0 is the first step in an iterative process to develop final guidelines, which W3C expects to be completed after 2022. In addition to the Working Draft of the new standard, W3C also has released an introduction to WCAG 3.0 and a document outlining its requirements. Comments on the First Public Working Draft are due by February 26, 2021.
The WCAG technical standards are a globally recognized and technologically neutral set of voluntary web content accessibility guidelines developed by the WAI “with a goal of providing a single shared standard for web content accessibility that meets the needs of individuals, organizations, and governments internationally.”
WCAG 2.0, released in December 2008, aims “to ensure that content is directly accessible to as many people as possible, and capable of being re-presented in different forms to match different peoples' sensory, physical and cognitive abilities.” To that end, WCAG 2.0 provides twelve guidelines organized under the four principles of being perceivable, operable, understandable, and robust. Each of the twelve guidelines has testable success criteria, which are classified as one of three levels: A, which meets the most basic accessibility features; AA, which addresses the most significant and most common barriers for users with disabilities; and AAA, which provides the highest level of web accessibility. Successive iterations in the 2.x series build upon prior standards—in some instance superseding, and in other instances complementing previous releases—all the while adopting new success criteria, addressing, for example, standards for mobile devices, the needs of people with cognitive or learning disabilities, users of mobile devices, and users of eBooks.
WCAG has become prominent in the U.S. accessibility space to provide a means of compliance with multiple federal accessibility laws. Title III of the ADA prohibits discrimination on the basis of disability in public accommodations, requiring that individuals with a disability be offered the “full and equal enjoyment . . . of any place of public accommodation.” While courts remain split on the extent to which virtual “places” such as online stores are subject to Title III, where it has been found to apply, the 30-year-old statute could not contemplate the law’s application to websites and digital content and thus supplies no standards for ensuring accessibility for web-based accommodations. Critically, without explicit guidance on a standard to ensure accessibility under the ADA, WCAG has emerged as a de facto standard, referenced by courts, administrative agencies, and regulators. WCAG has also become prominent in the area of federal procurement of information and communications technology (ICT) under Section 508 of the Rehabilitation Act of 1973, which requires such technology to be accessible both to federal employees and the public. Current regulations implementing Section 508 require compliance with WCAG 2.0.
WCAG 3.0 Highlights
Though WCAG 3.0 leverages the widespread recognition of the WCAG acronym, this guidance, “W3C Accessibility Guidelines (WCAG) 3.0”—dubbed Project Silver—reflects an extension beyond web content to include content authoring, authoring tools, user agents, and assistive technology support. WCAG 3.0 “uses a model that allows it to address more disability needs than WCAG 2.x, as well as address publishing requirements and emerging technologies such as web XR (augmented, virtual and mixed reality) and voice input” with a goal to “provide information that can be used to improve the accessibility of products on a variety of platforms. It will also provide non-normative information about the ways web technologies need to work with authoring tools, user agents, and assistive technologies.” Drafters note that the WCAG 3.0 “model is designed to support better coverage across disabilities and be easier to maintain, so that the new model will be more enduring over time as technologies evolve.”
Drafters also note that WCAG 3.0 is a successor to Web Content Accessibility Guidelines 2.2 and previous versions, “but does not deprecate these versions.” Instead, WCAG 3.0 is an alternative set of guidelines. “Once these guidelines become a W3C Recommendation, the W3C will advise developers, content creators and policy makers to use WCAG 3.0 in order to maximize future applicability of accessibility efforts. However, content that conforms to earlier versions of WCAG continue to conform to those versions.” The Public Working Draft of WCAG 3.0 also indicates a departure from the existing scoring model in favor of a three-tier point system: bronze, silver, and gold.
WCAG’s Far Reaching Impact
As, regulators, agencies, and courts continue to turn to the WCAG as the touchstone of their considerations, WCAG 3.0 could become even more widely used in standard setting, risk mitigation, and regulatory compliance strategies because of the wider range of disabilities, technologies, and tools that fall within the scope of the guidelines.
U.S. Department of Justice
The U.S. Department of Justice (DOJ), the primary agency responsible for enforcing the ADA, has repeatedly affirmed its preference for WCAG standards. The DOJ has reached settlement agreements with a number of defendants for failure to provide individuals with disabilities equal access to public accommodations—in each instance requiring compliance with WCAG 2.0, Level AA. In 2010, the DOJ proposed to adopt the WCAG 2.0’s Level AA Success Criteria as its standard for accessibility for entities subject to Title III of the ADA. Although in 2017 the DOJ abandoned the rulemaking, stating that websites “have flexibility in how to comply with the ADA” and that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA,” to the extent that the Biden administration takes up the mantle to provide regulations regarding web accessibility standards, it is likely that WCAG 3.0 will serve as a guidepost.
U.S. Access Board
The Architectural and Transportation Barriers Compliance Board (Access Board) is charged with implementing the Rehabilitation Act and proposing non-binding guidelines for Section 255 of the Communications Act, which imposes accessibility obligations on providers of telecommunications services and related services and equipment. In January 2017, the Access Board refreshed its Section 508 regulations and Section 255 guidelines to require conformity with WCAG 2.0 Level A and Level AA Success Criteria. It is likely that future versions of these rules and guidelines will incorporate WCAG 3.0. Although the Federal Communications Commission has not updated its Part 6 and Part 7 rules implementing Section 255 to incorporate WCAG and match the Access Board’s most recent guidelines, the Commission borrowed heavily from the Access Board’s initial guidelines when it adopted Parts 6 and 7 in 1999. To the extent the Commission takes up reform of its accessibility regulations in the future, the Access Board’s guidelines—and their use of WCAG—may influence the Commission’s approach. However, at this time the Commission has not announced plans to reform its regulations implementing Section 255.
While courts are split on the issue of Title III’s applicability to websites and apps, court rulings and settlements have typically pointed to WCAG 2.0, Level AA, as the generally accepted standard of web accessibility. Once WCAG 3.0 is finalized, it is likely that future litigants will ask courts to impose the new standard on defendants’ virtual places of public accommodation.
Given the significant role WCAG 2.x has played in the development of accessibility law and policy in the United States, stakeholders should follow the development of WCAG 3.0 closely. In addition to reviewing the standard and assessing the feasibility of compliance, stakeholders that seek to influence WCAG 3.0’s development should contact the authors of this post for more information about how to participate. As an initial step, stakeholders can submit comments on the First Public Working Draft to the WCAG 3.0 working group by February 26, 2021.
 Implementation of Sections 255 and 251(a)(2) of the Communications Act of 1934, as Enacted by the Telecommunications Act of 1996, WT Docket No. 96-198, Report and Order and Further Notice of Inquiry, 16 FCC Rcd 6417 (July 14, 1999) (Section 255 Order); 47 C.F.R. §§ 6.1-6.23 (implementing rules), see also IP-Enabled Services: Implementation of Sections 255 and 251(a)(2) of the Communications Act of 1934, as Enacted by the Telecommunications Act of 1996, etc., WT Docket Nos. 92-105, 96-198, 03-123, 04-36, Report and Order, 22 FCC Rcd 11275 (June 15, 2007).
 See e.g., Robles v. Domino's Pizza, LLC, 913 F.3d 898, 911 (9th Cir.), cert. denied, 140 S. Ct. 122 (2019); Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017) (requiring conformity with WCAG 2.0, Level AA as an injunctive remedy).