Beginning in July 2010, the United States Department of Justice (DOJ) started talking about new federal regulations concerning website accessibility for people with disabilities.
For seven years, in rule making announcements, guidance documents, and other official DOJ statements, Justice repeated its goal of releasing legal rules and guidelines for online accessibility. These guidelines would essentially create the legal boundaries, parameters, and mandates for making online materials accessible to users with disabilities and most importantly, explaining HOW DOJ would then determine what is and is not legally accessible.
Regrettably, the long wait for DOJ’s promised regulations ended in December 2017, when DOJ decided to scrap its work in progress.
As DOJ explained:
“The Department is evaluating whether promulgating regulations about the accessibility of Web information and services are necessary and appropriate. Such an evaluation will be informed by an additional review of data and further analysis. The Department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”
Even before DOJ announced its December 2017 regulatory withdrawal, multiple federal courts had decided that the administration of justice and adjudication of disability discrimination claims would not wait for DOJ to act. As one court held in 2017:
“[DOJ] has, to the contrary, affirmatively abandoned consideration of website-accessibility standards for the immediate future. Because the DOJ “has not taken any further action towards promulgating specific accessibility requirements and there is no reason to believe the department will issue rules any time in the near future,” the “potential for delay while the federal administrative rulemaking process proceeds is great”
The court will not delay in adjudicating [plaintiff’s] claim on the off-chance the DOJ promptly issues regulations it has contemplated issuing for seven years but has yet to make significant progress on.”
Access Now, Inc., et al. v. Blue Apron LLC (U.S. District Court for the District of New Hampshire, 2017)
What makes a website accessible?
Despite DOJ’s regulatory retreat, the legal issues remain – What is and what is not a legally accessible website for people with disabilities? Finding answers to this complex question can be a daunting task, even for many lawyers who are trying to help their clients. But, like anything else, the search for answers pays off if you know how and where to look for clues, trends, and reliable authority.
One such source arose in the spring of 2018, in a federal settlement agreement between the United States of America through DOJ’s Disability Rights Section in Washington, D.C. and Teachers Test Prep, Inc. (TTP), located in Mill Valley, California. The settlement resolves disability discrimination allegations against TTP. DOJ began an investigation after receiving a disability discrimination complaint that TTP’s online video courses were inaccessible to deaf individuals because they did not provide closed captions.
TTP is a private business that offers test preparation courses related to credentialing exams through online classes, tutoring and live classes at college campuses and conference facilities throughout California. As a private business offering services to the public, TTP is a “place of public accommodation” and is covered by Title III of the Americans with Disabilities Act (ADA).
According to DOJ:
“Following its investigation, the Department substantiated the Complainant’s allegations that TTP violated Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12189, because: (1) TTP did not offer its online courses in a manner accessible to individuals with hearing disabilities and (2) TTP did not provide its one-on-one tutoring sessions in a manner accessible to persons with hearing disabilities, including providing qualified interpreters, which rendered the sessions inaccessible to the Complainant.
TTP will comply with the requirements of the ADA, 42 U.S.C. § 12189 and its implementing regulation, 28 C.F.R. § 36.309. The ADA mandates TTP to offer its courses in a manner accessible to individuals with disabilities 42 U.S.C. § 12189; 28 C.F.R. § 36.309.
It also requires TTP to make modifications to its courses as necessary to ensure that the manner in which the courses are given are accessible to individuals with disabilities, including adaptation of the manner in which the course is conducted or course materials are distributed. The ADA requires TTP to provide appropriate auxiliary aids and services, unless TTP can demonstrate that offering a particular auxiliary aid or service would fundamentally alter the course or would result in an undue burden. Also, if alternative accessible arrangements are required, TTP must provide comparable conditions to those provided for nondisabled individuals.”
One paragraph of the agreement confirms DOJ’s thinking on where to look for clues about how to make a website accessible to people with disabilities.
“TTP will ensure all of its online video content has captions. For the purposes of this agreement, captions are defined as the visual display of the audio portion of a video file that is consistent with the Web Content Accessibility Guidelines (WCAG) 2.0 AA Guideline 1.2.2 or Guideline 1.2.4 (for live video).
TTP represents that its current closed captioning provided in its online videos is compliant with these guidelines.”
In the settlement agreement, DOJ confirms the continued currency of the WCAG 2.0 AA guidelines, while also explaining the non-binding nature of WCAG recommendations and statements. As DOJ explained: “WCAG 2.0 AA consist[s] of voluntary, international guidelines for Web Accessibility published by the World Wide Web Consortium (W3C), Web Accessibility Initiative (WAI), available here.
There are several important takeaways:
- DOJ continues to interpret the ADA as requiring that websites and online materials be accessible to people with disabilities.
- The absence of federal website accessibility regulations does not stop DOJ from investigating and finding disability discrimination in websites and online offerings.
- DOJ still uses WCAG 2.0 AA as its benchmark for assessing website accessibility.
- WCAG 2.0 AA is VOLUNTARY and has no legal force or application.
WCAG 2.0 AA is still a good place to start when evaluating online accessibility. But it is just a place to start.
All of the WCAG voluntary recommendations and standards are not created equal. Some are more pressing than others, with such criteria varying depending upon the programs, services, and activities offered online.
Even with all the uncertainty surrounding HOW to make your website legally accessible, there is one unassailable bottom line as ADA website lawsuits continue to fill court dockets – it is no longer a question of IF your website should be accessible to people with disabilities. Of course, it MUST be accessible. That liability train left the station long ago…
**Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson 2018, special for Bromberg, All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.
Mr. Adelson teaches cultural and civil rights awareness and implicit bias at Georgetown University School of Medicine in Washington, D.C.
He most recently taught at Cornell University.