Legal experts say they have 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 fraught with lawsuits, as plaintiffs and disability advocates accuse some sites of having barriers that make it difficult for 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 guidelines explain why website accessibility matters, give examples of accessibility barriers and point to existing industry standards, including guidelines for web content accessibility. (WCAG) as a means of achieving 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 specialist practice team, say “the advice isn’t particularly helpful.”
This “still leaves open the possibility of compliance in some other way beyond WCAG, but it doesn’t say what,” she says. Vu notes that the guidelines state that “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 the “Helpful Hints” resources, he points to WCAG, a standard created by the World Wide Web Consortium. But Vu wants to “see a legally binding agreement [federal] regulations that set detailed and clear standards for websites.
Jennifer Sherven, a partner at Kaufman Dolowich & Voluck, LLP in Woodbury, also said the advice was “disappointing” in that it did not address specific technical standards.
It still leaves the door open to interpretation and litigation by stating that there is flexibility for companies in how they comply, but “does not specifically say what type of flexibility”, such as the use of a 24/7/365 phone line to call for help or use an automated add-on accessibility solution, she said.
Courts can’t agree
She also would have liked the DOJ to address those topics that have sparked differing judicial opinions, including differences between U.S. Court of Appeals circuits over whether ADA standards apply to companies such as online retailers without a physical location.
A DOJ spokesperson said: “The purpose of guidance documents is not to create new laws or standards (which is not permitted in a guidance document). Instead, this document responds to calls from the public for the Department to clarify obligations under the ADA with respect to website accessibility… To this end, the guidance is bringing together existing content in a form that is useful for non-experts to understand the web accessibility.
Yet the DOJ has worked to enforce accessibility where the legal obligations are sufficiently clear. Most recently, the DOJ announced a settlement agreement with CVS Pharmacy regarding online access to COVID-19 vaccine registration for people with disabilities. One issue was that the types of vaccination appointments offered by CVS (which included influenza, pneumonia, and others, in addition to COVID-19) were not audibly played to reader users. screen.
Albert J. Rizzi, Founder and CEO of MyBlindSpot.org, a New York-based nonprofit that provides training and guidance to organizations to support their digital accessibility initiatives, says there is “an enormous amount shortcomings” regarding the accessibility of websites.
Rizzi from Bellport, who is blind, says he faces obstacles every day.
Among them: sites poorly coded to accommodate assistive technologies like screen readers that read printed text aloud and/or those that lack descriptive text or sufficient information to let them know what they’re clicking on. .
He did not expect the DOJ guidelines to define specific standards, noting that industry standards such as WCAG already exist for businesses.
“I don’t think it’s the government’s job to give us a roadmap,” Rizzi says.
The blame should lie with companies that tend to “include funding for potential litigation in their budgets rather than funding to build digital equity and authentic inclusion in their digital platforms,” Rizzi says. He also said that digital accessibility should be part of the core curricula of universities.
Mike Caprara, chief information officer at the Viscardi Center in Albertson, which offers website accessibility services including website auditing and usability testing, agrees, noting that there are to “programmers and developers coming out of colleges who don’t know what the standards are and how to code for them.”
He was disappointed that the DOJ hadn’t released more concrete federal compliance standards, noting that the guidelines “were sort of a reinforcement of the ADA and WCAG standards.” Still, he believes that “a lot of companies don’t feel they have to do anything unless they get sued” and should prioritize accessibility instead.
Caprara said that in addition to broad website accessibility, companies need to ensure that documents such as PDFs, Word and PowerPoint are compliant and compatible with screen readers and that video content is captioned or offered in alternative formats such as audio descriptions.
“If companies don’t commit to digital equity, their competitors will,” says Rizzi.
Nationally, 2,895 ADA Title III website accessibility lawsuits were filed in federal courts in 2021, an increase of 14% from 2020. The number of site accessibility cases Webs filed in the Eastern District of New York, which includes Long Island, was 384 in 2021 compared to 275 in 2020.
Source: Seyfarth Shaw