Legal experts say they’ve been waiting years for specific federal standards from the Department of Justice regarding website accessibility under the Americans with Disabilities Act.
It’s an area rife with lawsuits, as plaintiffs and disability advocates charge that certain sites have obstacles making it difficult for some people with disabilities to navigate.
The DOJ, which enforces the ADA, hasn't said when or if it might issue standards, but its recently released guidance lays out why website accessibility matters, gives examples of accessibility barriers, and points to existing industry standards including the Web Content Accessibility Guidelines (WCAG) as a way to achieve compliance.
Still, some legal experts like Minh Vu, a partner in Seyfarth Shaw’s Washington office and head of the firm’s ADA Title III specialty practice team, says “the guidance isn’t particularly helpful.”
It “still leaves open the possibility of compliance in some other manner beyond WCAG, but it doesn’t say what,” she says. Vu notes the guidance states “businesses and state and local governments can currently choose how they will ensure that the programs, services and goods they provide online are accessible to people with disabilities.” Among resources for “helpful guidance,” it points to WCAG, a standard created by the World Wide Web Consortium. But Vu wants “to see a legally binding [federal] regulation that sets out detailed and clear standards for websites.”
Jennifer Sherven, a partner at Kaufman Dolowich & Voluck LLP in Woodbury, also felt the guidance was “disappointing” in that it didn’t address specific technical standards.
It still leaves the door open for interpretation and litigation by stating there’s flexibility for businesses in how they comply, but “doesn’t specifically say what type of flexibility,” such as the use of a 24/7/365 telephone line to call for assistance or the use of automated add-on accessibility solution, she said.
Courts can't agree
Sherven also wished the DOJ addressed such topics that have drawn divergent court opinions, including differences among circuits of the U.S. Court of Appeals on whether ADA standards apply to such businesses as online retailers without a physical location.
A DOJ spokesperson said: "The purpose of guidance documents is not to create new law or standards [which is not permissible in a guidance document]. Instead, this document responds to calls from the public asking the Department to make clear the obligations under the ADA with regard to website accessibility. … To that end, the guidance puts together existing content in a form that is useful for nonexperts to understand web accessibility."
Still, DOJ has worked to enforce accessibility when legal obligations are clear enough. Most recently, the DOJ announced a settlement agreement with CVS Pharmacy regarding making online COVID-19 vaccine registration accessible for people with disabilities. One issue was that the types of vaccine appointments CVS offered (which included influenza, pneumonia and others, in addition to COVID-19) were not read audibly to screen-reader users.
Albert J. Rizzi, founder and CEO of MyBlindSpot.org, a New York-based nonprofit that provides training and consulting to organizations to support their digital accessibility initiatives, says there are a “tremendous amount of shortcomings” regarding website accessibility.
Rizzi, of Bellport, who is blind, says he runs into barriers daily.
Among them: sites poorly coded to accommodate assistive technologies like screen readers that read aloud printed text and/or those lacking sufficient descriptive text or information to let him know what he’s clicking on.
He didn’t expect the DOJ guidance to lay out specific standards, noting industry standards like WCAG already exist for businesses to follow.
“I don’t think it’s the government’s job to give us a road map,” says Rizzi.
The onus should be on corporations that tend to “include in their budgets funding for potential litigation rather than funding for building digital equity and authentic inclusion into their digital platforms,” Rizzi says. He also said digital accessibility should be part of core curricula at universities.
Mike Caprara, chief information officer at The Viscardi Center in Albertson, which offers website accessibility services including auditing for websites and usability testing, agrees, noting there are “programmers and developers coming out of universities not knowing what the standards are and how to code to them.”
He was disappointed the DOJ didn’t release more concrete federal compliance standards, noting the guidance “was kind of a reinforcement of ADA and WCAG standards.” Still, he feels “a lot of companies don’t feel forced to do anything unless they’re sued” and should instead prioritize accessibility.
Caprara said aside from broad website accessibility, companies must ensure documents such as PDFs, Word and PowerPoint are in compliance and compatible with screen readers and that video content is captioned or offered in alternative formats such as audio descriptions.
“If corporations don’t get on board with digital equity, their competitors will,” Rizzi says.
Nationally, there were 2,895 ADA Title III website accessibility lawsuits filed in federal courts in 2021, a 14% increase over 2020. The number of website accessibility cases filed in the Eastern District of New York, which includes Long Island, was 384 in 2021 vs. 275 in 2020.
Source: Seyfarth Shaw