It was in August 2023 that the U.S. Department of Justice (DOJ) released a Notice of Proposed Rulemaking (NPRM). According to the NPRM, the Web Content Accessibility Guidelines will be the standard for compliance for state and local governments covered by Title II of the Americans with Disabilities Act.
Accordingly, people with disabilities should be able to access state and local government websites and mobile apps easily. This landmark proposal helps address the multiple barriers users with disabilities face while accessing essential government resources online.
However, the DOJ has not offered any proposals on how to measure compliance with the law. Instead, it mentions reviewing multiple options as it is impossible to achieve 100% compliance 100% of the time.
Read on for more about the vital implications of the proposed Title II regulations for state and local government websites.
NPRM Breaks New Ground
The most significant implication of the finalization of the NPRM is the imposing of a deep, broad, and comprehensive approach to making state and local government websites and mobile applications accessible.
According to the proposed regulation and based on the ADA, all state and local government websites are “public accommodations.”
People with disabilities should thus be able to access them just like they access other physical public accommodations like schools and government offices.
With this clarification comes a few other frequently asked questions about the NPRM.
Does the regulation cover websites or mobile apps?
The DOJ clarified and resolved the question by stating that the new regulation covers websites and mobile apps.
What is the level of compliance- WCAG 2.1 or WCAG 2.2?
About whether the WCAG will gain the force of law, the DOJ resolved the matter by declaring that WCAG 2.1, and not the latest WCAG 2.2, would be followed.
Which level of success criteria?
And when it comes to the level of success criteria to adhere to, it’s Levels A and AA, but not Level AAA. WCAG 2.1 Level AA houses a set of internationally recognized standards for website accessibility.
They encompass various considerations that include ensuring text is readable, all images on the site are accessible, and that screen readers can navigate websites.
How much time do web developers have to achieve compliance?
The DOJ asserts that state and local government websites are the subject of NPRM and that Title II of the ADA covers them. It provides at least two years after the finalization of the regulation to redesign or update the website to comply with WCAG 2.1 Level AA.
In the case of smaller governments, based on their population size, they have up to three years to achieve compliance.
Are there any exceptions for permitting inaccessible content?
Yes, there are limited exceptions. The proposed regulation recognizes limited exceptions for inaccessible content in the case of:
Multiple websites have historical content like lectures, speeches, and presentations on museum and public university websites, retained for years and decades.
The NPRM exempts state and local governments from rendering these archived materials to be made accessible as long as the content is not editable or subject to any form of modification.
Pre-existing conventional documents
Similarly, many websites contain content such as presentations, word-processed, or PDF documents. These documents are exempt from compliance as long as they were on the website before the compliance date, and current users don’t need to use them for access.
Web content posted by third parties
Any content posted on a website by a third party is exempt and need not be made accessible.
Any linked third-party content
Any linked content on third-party websites is exempt from having to be accessible. The only exceptions are when the state or local government depends on and uses the linked materials for accessing government services, activities, or programs.
Separate or Shadow Sites to Be Used Only as a Last Resort
Creating separate websites for disabled users is discouraged and will only be allowed in limited situations. Using shadow websites implies that the primary website is inaccessible, effectively creating a “separate but equal” approach contrary to the principles of inclusivity.
Such separate websites will only be permitted if it is impossible to create a single website compliant to all users, regardless of their abilities. This clarification reaffirms the long-held belief that a unified, accessible website should be the primary goal, with separate sites serving as a last resort rather than a default option.
No 100% Compliance Mandate for Achieving Accessibility
While the proposed regulation adopts the WCAG 2.1 Levels A and AA as accessibility standards, the DOJ acknowledges that achieving perfect adherence to these standards is unrealistic.
So ADA compliance will not demand 100% conformance every time. Instead, the DOJ has suggested and discussed various options for establishing a measurable compliance standard.
The measure of conformance to be adopted is not precise. Besides, the DOJ is open to seeking input from stakeholders. The proposed regulations should be finalized in 2024, and the DOJ will accept public comments about the proposed regulations until November 29, 2023.
NPRM and its impact on the Private Sector and its Websites
The proposition applies only to ‘public entities’ covered by Title II of ADA, mainly state and local governments. It’s been thirteen years since the DOJ announced its intention to regulate private sector websites. This is the most specific and detailed the DOJ has been about regulations for the private sector and its websites.
There isn’t any guarantee that the final Title II regulation matches NPRM or that the Title III regulation matches Title II regulation. However, this is a breath of fresh air for private-sector entities looking for guidance or a framework to comply with.
So, a finalized regulation will serve as the framework for a blueprint for web compliance and accessibility. This blueprint will be for private-sector businesses owning or operating public accommodations that Title II of ADA covers.
Private-sector businesses should design and maintain their websites and be ready if the regulation gets implemented under Title III of the ADA.
As it generally takes websites months to years, tens of thousands of dollars to develop, and even more time and money to revise and reboot, private-sector entities should consider designing their websites with the DOJ’s current intentions in mind.
Some likely takeaways for the private sector are:
WCAG may be the new standard for the private sectors
As usual, the WCAG is the de facto standard for web accessibility for creating websites that are accessible to everyone. While WCAG 2.1 is currently the official standard, it’s worth noting that WCAG 2.2 is an updated version with minor revisions and enhancements to the existing guidelines.
In short, it further solidifies WCAG’s position as the industry benchmark.
The DOJ has indicated that it may adopt WCAG 2.2 when it fixes accessibility regulations for the private sector. This decision makes sense, given the importance of staying up-to-date with the latest accessibility standards.
Businesses prioritizing inclusivity and avoiding potential legal challenges should adapt their websites to comply with WCAG 2.2. By familiarizing themselves with the revised guidelines, they can ensure that their websites are accessible to all users, regardless of their abilities.
Levels A and AA and not AAA are the likely standard
The Department of Justice’s (DOJ) decision to focus on Levels A and AA of WCAG 2.1 for web accessibility standards strikes a pragmatic balance between inclusivity and practicality. While Level AAA represents the highest level of accessibility, it may not always be feasible or cost-effective for businesses to implement.
This approach aligns with the DOJ’s previous website settlements with private companies, which have also focused on Levels A and AA. Businesses can find comfort in this consistent approach and prioritize compliance with these manageable standards.
In cases where specific “success criteria” within Levels A or AA pose challenges for a business’s operations, a documented rationale explaining why adhering to that criterion would fundamentally alter the nature of the business can serve as a valuable defense in any potential litigation.
By focusing on Levels A and AA, the DOJ is taking a measured step towards ensuring web accessibility without burdening businesses. This compromise reflects a recognition of both the importance of accessibility and the practical realities of business operations.
Delicate balancing of third-party content exclusions
The proposed rulemaking (NPRM) on web accessibility standards offers welcome exemptions for third-party content and links to third-party websites. However, this comes with exemptions, and it’s crucial to understand the nuances of these exemptions.
Simply put, if a business utilizes third-party content or links as part of its core operations or benefits, then the content must be accessible. For instance, businesses using third-party payment, reservation, or mapping software should adhere to accessibility standards.
Conversely, links to external websites providing information on attractions, hotels, or restaurants near the business, which fall outside core operations, are not subject to accessibility requirements.
So, businesses must carefully assess their third-party content and links. By understanding the boundaries of the exemptions, businesses can ensure they comply with accessibility standards while avoiding unnecessary burdens.
A Realistic Approach to Website Accessibility as Websites Can’t Be Perfect
In a reassuring move for website designers and maintainers, the Department of Justice (DOJ) acknowledges that it’s impractical to expect to meet all WCAG 2.1 accessibility standards. This acknowledgment raises vital questions about the specific level of conformance that will be deemed sufficient.
However, website owners can take comfort in the fact that isolated noncompliance is not a violation of Title II of the ADA, assuming this provision remains unchanged in the final rulemaking. A similar standard should apply to Title III as well.
By embracing this pragmatic approach, the DOJ fosters a more realistic and achievable path to website accessibility.
Despite all of this, there are still some questions the private sector entities have to ask about compliance issues. And out of the many questions, these are the most commonly asked four questions:
Does the NPRM offer the private sector the same grace period for compliance as the public sector?
Disability advocates oppose grace periods because public entities had decades of time and notice to get their websites accessible. They contend that more time is unnecessary, and the same applies to the private sector.
However, the proposal for grace periods also recognizes that many websites need time to develop a clear standard and to gain conformance. Besides, there are different grace periods for smaller government entities serving populations of less than 50,000 people. This suggests that the DOJ is sensible to the economic issues smaller businesses face to ensure compliance with their websites.
What is the standard of WCAG compliance for measuring compliance with ADA?
The NPRM tactfully avoids providing a definitive answer to this complex and contentious question by seeking public input on various options.
This open-ended approach is in the DOJ’s favor as the replies will dictate the potential impact of the answer on the countless litigation claims that have plagued the business community.
The options, however, recognize that perfection is unattainable and that focusing on a business’s genuine efforts to comply rather than solely on outcomes may be a more equitable approach.
While the definitive answer remains elusive, businesses can take heart from the DOJ’s suggestion that robust compliance efforts not only lead to more accessible websites but may also serve as a strong defense against future litigation claims.
By embracing a proactive approach to accessibility and demonstrating a genuine commitment to compliance, businesses can navigate the complexities of this evolving landscape with greater confidence.
Will an ‘undue burden’ defense be available?
The underlying statute (42 U.S.C. § 12182(b)(2)(A)(iii)) and corresponding regulation (28 C.F.R. § 36.303(c)) ensure the need for “effective communication” with individuals with disabilities.
However, these requirements are not absolute and are subject to the limitations of undue administrative or financial burdens. This implicit recognition of the undue burden defense is reflected in the varying compliance timelines for government entities with differing resource capacities. It also reflects in the acknowledgment that achieving perfect website accessibility is unrealistic.
Whether and to what extent courts will uphold the undue burden defense in website compliance cases remains an open question. However, the DOJ’s proposed rulemaking on web accessibility standards suggests a willingness to consider such defenses, mainly where compliance imposes significant financial hardships or administrative challenges.
Businesses seeking to navigate this complex landscape should carefully evaluate their website’s accessibility and implement reasonable measures to ensure effective communication with all users.
By demonstrating a genuine commitment to accessibility and a willingness to address any identified issues promptly, businesses can increase their chances of successfully asserting an undue burden defense should they face legal challenges.
Will a clear federal standard fend off the state’s stronger legislative or regulatory efforts?
The business community faced significant uncertainty earlier this year when the California State Legislature considered legislation mandating strict WCAG compliance with lawsuits against non-compliant websites.
This legislative effort may resurface in the hope that states will feel less compelled to intervene with the establishment of federal regulations.
Proponents of the California legislation justified their proposals based on the fact that businesses desired clear accessibility standards. Whether the proposed rulemaking (NPRM) adequately addresses this need and pre-empts the need for further state-level regulations will be determined only over time.
While the ultimate impact of the NPRM remains unknown, it represents a significant step toward establishing clear and consistent web accessibility standards at the federal level.
By providing businesses with a clear roadmap for compliance, the NPRM can reduce uncertainty and foster a more harmonious regulatory environment.
Additional Implications of Proposed Title II Regulations for State and Local Government Websites
There is more to the DOJ’s proposed regulations beyond website compliance. Here are some additional implications of the proposed Title II regulations for state and local government websites:
Establishing grievance procedures
The proposed Title II regulations require state and local governments to establish grievance procedures to address accessibility complaints. This means that individuals with disabilities who encounter accessibility barriers on government websites have a clear and accessible process for reporting these issues.
The grievance procedure should be easy to understand and follow and provide a timely and effective resolution to accessibility complaints. Here are some critical elements of an effective grievance procedure:
- Clear and accessible communication: The grievance procedure should be communicated in a clear and accessible manner, using plain language and multiple formats, such as text, audio, and video. It should also be easy to find on the government website and provided in materials distributed to the public.
- Easy-to-use complaint form: The grievance procedure should provide an easy-to-use complaint form that allows individuals to clearly and concisely describe the accessibility issue they have encountered. It should be available in multiple formats and accessible to people with disabilities.
- Prompt acknowledgment and response: Upon receiving a complaint, the government should promptly acknowledge receipt and provide an estimated timeline for investigating and responding to the issue. The government should also keep the complainant informed of the progress of the investigation and resolution process.
- Thorough investigation and effective resolution: The government should conduct a thorough investigation to determine the nature and extent of the accessibility issue. Upon identifying the issue, the government should take prompt and effective action to remediate the barrier and ensure accessibility.
- Documentation and feedback: The government should maintain documentation of all accessibility complaints and the actions taken to resolve them. It can track progress, identify trends, and inform future accessibility efforts. The government should also provide feedback to the complainant on the outcome of their complaint and any steps taken to address the issue.
- Accessibility of the grievance procedure: The grievance procedure should be accessible to individuals with disabilities. The complaint form, instructions, and any communication related to the grievance process should be available in multiple formats and accessible to people with disabilities.
By establishing an effective grievance procedure, state and local governments can demonstrate their commitment to accessibility and ensure individuals with disabilities have a means of reporting and resolving accessibility barriers on government websites. This will help to create a more inclusive and equitable online experience for all residents.
Training Employees on Website Accessibility
One of the critical implications of the proposed Title II regulations for state and local government websites is the need to train employees on website accessibility.
This training will ensure that all employees involved in developing, maintaining, and creating content for government websites know the accessibility standards and how to implement them.
Accessibility training should cover a wide range of topics, including:
- Understanding the principles of web accessibility
- Identifying common accessibility barriers
- Implementing accessibility solutions for various website elements
- Testing and evaluating website accessibility
With comprehensive accessibility training for employees, state and local governments can ensure that their websites are accessible to all users, regardless of their abilities. This complies with the proposed regulations while promoting inclusivity and equal access to government services.
In addition to employee training, state and local governments should establish clear accessibility policies and procedures. These policies should outline the organization’s commitment to accessibility and guide how to implement accessibility standards throughout the website development process.
Conducting Regular Accessibility Audits and Evaluations
Regular accessibility audits and evaluations are essential to identify and address accessibility issues on government websites. These audits by qualified accessibility professionals assess the website’s compliance with accessibility standards and identify specific barriers that may hinder access for people with disabilities.
The frequency of accessibility audits will depend on the size and complexity of the website and the frequency of updates. However, audits are generally conducted annually or more frequently if the website undergoes significant changes.
Implementing Accessibility Guidelines and Best Practices
There are numerous accessibility guidelines and best practices available to help governments design and develop accessible websites. These guidelines provide detailed recommendations for making websites accessible to people with a wide range of disabilities.
Some of the most commonly used accessibility guidelines include:
- Web Content Accessibility Guidelines (WCAG) 2.1
- Section 508 Standards
In addition to following accessibility guidelines, governments should adopt accessibility best practices. These practices can include:
- Using accessible design principles
- Testing websites with assistive technology
- Providing alternative text for images
- Creating transcripts for audio and video content
- Using accessible forms and widgets
Using Accessible Technology and Tools
Governments should use accessible technology and tools to develop and maintain their websites. This includes using web content management systems (CMS) and other development tools designed to support accessibility.
Several assistive technologies can test websites for accessibility. These tools can help to identify potential barriers that may not be obvious to users without disabilities.
Monitoring and Addressing Accessibility Issues Promptly
Governments should establish a process for monitoring and addressing accessibility issues promptly. This includes responding to accessibility complaints promptly and taking corrective action to fix any accessibility barriers.
Governments can also use web analytics tools to track accessibility-related metrics to identify areas where accessibility improvements are needed.
Seeking Feedback from People with Disabilities
Governments should seek feedback from people with disabilities to identify and address accessibility issues on their websites through user testing, surveys, and focus groups.
Feedback from people with disabilities can provide valuable insights into the accessibility of a website and can help to identify barriers that may not be obvious to developers or testers.
Remediating Accessibility Issues
Governments should take prompt action to remediate any identified accessibility issues like:
- Fixing code errors and design issues
- Providing alternative content for inaccessible content
- Training staff on accessibility
Providing Accessible Alternative Formats for Content
For content that cannot be made accessible on the website, governments should provide accessible alternative formats like:
- Providing braille transcripts for documents
- Providing audio descriptions for videos
- Providing sign language interpretation for videos
By taking these additional steps and abiding with Title II regulations from the DOJ rule set for government websites, governments can make their websites accessible to everyone and ensure they comply with the proposed Title II regulations. This will help create a more inclusive and equitable digital society where everyone can fully participate in civic life.
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The ADA prohibits any private businesses that provide goods or services to the public, referred to as “public accommodations,” from discriminating against those with disabilities. Federal courts have ruled that the ADA includes websites in the definition of public accommodation. As such, websites must offer auxiliary aids and services to low-vision, hearing-impaired, and physically disabled persons, in the same way a business facility must offer wheelchair ramps, braille signage, and sign language interpreters, among other forms of assistance.
All websites must be properly coded for use by electronic screen readers that read aloud to sight-impaired users the visual elements of a webpage. Additionally, all live and pre-recorded audio content must have synchronous captioning for hearing-impaired users.
Websites must accommodate hundreds of keyboard combinations, such as Ctrl + P to print, that people with disabilities depend on to navigate the Internet.
Litigation continues to increase substantially. All business and governmental entities are potential targets for lawsuits and demand letters. Recent actions by the Department of Justice targeting businesses with inaccessible websites will likely create a dramatic increase of litigation risk.
Big box retailer Target Corp. was ordered to pay $6 million – plus $3.7 million more in legal costs – to settle a landmark class action suit brought by the National Federation of the Blind. Other recent defendants in these cases have included McDonald’s, Carnival Cruise Lines, Netflix, Harvard University, Foot Locker, and the National Basketball Association (NBA). Along with these large companies, thousands of small businesses have been subject to ADA website litigation.
Defendants in ADA lawsuits typically pay plaintiff's legal fees, their own legal fees for defending the litigation, and potential additional costs. In all, the average cost can range from tens of thousands of dollars, to above six figures. There are also high intangible costs, such as added stress, time and human capital, as well as reputational damage. Furthermore, if the remediation is incomplete, copycat suits and serial filers can follow, meaning double or triple the outlay. It's vital to implement a long-term strategy for ensuring your website is accessible and legally compliant.