Raleigh, N.C. (April 15, 2024) – The
Americans with Disabilities Act prohibits covered entities from
discriminating on the basis of disability. Over the past ten years
thousands of lawsuits – many styled as class
actions–have been filed against covered entities alleging
that they have failed to make their websites and mobile
applications accessible. The proliferation of litigation has been
exacerbated by the failure of the Department of Justice, which is
tasked with enacting regulations under the ADA’s public
accommodation provisions, to issue long-anticipated regulations on
how to measure digital accessibility. The lack of regulations has
led to ambiguity about which standards applied, leaving covered
entities largely in the dark regarding the best way to protect
themselves from litigation and to accommodate persons with
disabilities.
That all changed on Wednesday, April 10, at least as to state
and local governments and entities that receive federal
funding.
The DOJ announced its final rule regarding state and local
governments’ obligations for providing accessible websites and
mobile applications. Pursuant to the regulations that are being
adopted, accessibility can be demonstrated by complying with the
Web Content Accessibility Guidelines (WCAG), which is a set of
testable success criteria that measure everything from text color
contrast to the use of captions on audio productions. The DOJ
specifically references WCAG 2.1, which was released in 2018 and is
more stringent than WCAG 2.0, the version of the rules against
which the federal government measures itself. Covered entities
should now be able to rely on compliance with these standards to
demonstrate accessibility, which promotes proactive remediation and
helps to decrease the risk of litigation.
By way of background, people with disabilities use different
assistive technology to navigate, comprehend, and interact with
websites, mobile applications, and other digital offerings.
However, each person with a disability uses a different suite of
assistive technology, so there has previously been no
legally-accepted least common denominator. Now that these covered
entities have testable criteria, they are able to objectively
analyze their offerings for litigation risk, rather than being
beholden to a particular disabled individual’s specific
circumstances.
This rule applies only to entities covered by ADA Title II;
i.e., state and local governments. Governments will be required to
comply within either two or three years, depending on the
entity’s size. However, it is anticipated that the rule will
foster the use of WCAG 2.1 as the standard by which websites
generally will be evaluated for accessibility. There are several
narrow exceptions to the mandate that content be accessible,
including for archived content, third-party posts by entities that
do not have contractual relationships with the entity, preexisting
social media posts, preexisting electronic documents, and
individualized password-protected documents.
The rule also limits the circumstances in which covered entities
can use conforming alternative versions. Typically, a provider can
offer a conforming alternative version of their content, such as a
specific “accessible version” of their website, in the
same way that theatres and sports arenas offer handicapped seating.
The new regulations will limit a state or local entity’s
ability to use an alternative conforming version to only those
circumstances where practical or legal restrictions prevent the
entity from creating one conforming product. In other words,
covered entities probably cannot rely on simply creating a second
“accessible” version of their website or application.
We also expect discussion on whether using accessibility
overlays or widgets will be limited by the alternative conforming
version regulations. Simply put, overlays and widgets are services
offered by third-party venders that are designed to make
non-accessible content accessible through the use of code and
AI.
The DOJ also accounted for the strict compliance requirements
associated with WCAG. An entity that fails to comply with WCAG in
some minor way–such as having text color contrast that is
almost, but not quite, compliant with the WCAG
requirements–has the opportunity to argue that, even given
the minor deviation from the guidelines, a person with a disability
still receives equal access. This safe harbor is vital, as the WCAG
success criteria are analyzed on a pass or fail basis, and full
suite compliance can, in certain circumstances, be impossible to
accomplish.
While this rule does not apply to private businesses covered by
Title III of the ADA, its requirements appear to be a good
indication of guidance to come regarding places of public
accommodation, including websites and mobile apps operated by such
businesses. The rule also brings the enforcement of Title II of the
ADA into line with several state laws that have incorporated WCAG
as demonstrable evidence of accessibility.
The rule is both lengthy and new, and we will continue to
provide guidance on its implementation during the rollout. In the
meantime, the DOJ’s fact sheet on the new rule provides a
helpful summary.
Lewis Brisbois’ADA Compliance and Defense group can assist
with questions about ADA compliance for website and mobile
applications as well as defending threatened and filed litigations
brought by individuals with disabilities. In addition to decreasing
litigation risk, having accessible offerings promotes equity,
eliminates barriers for persons with disabilities, and increases
your ability to serve new and existing clients as 26% of adults in
America live with some sort of disability.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
#United #States #DOJ #Releases #Rule #Mandating #Digital #Accessibility #State #Local #Governments #Employment #Litigation #Tribunals
