On Friday, March 18, 2022, the US Department of Justice (DOJ) published an update to web accessibility requirements related to the Americans with Disabilities Act (ADA).
The new guidance comes on the heels of calls for digital accessibility regulations that are clear and enforceable. Earlier this year, 181 disability organizations signed and delivered an open letter to U.S. Assistant Attorney General Kristen Clarke at the DOJ, emphasizing the urgency of clear and consistent enforceable policies.
Yet if last week’s announcement was intended to answer those calls, the new communication falls short of that purpose. The statement offers minimal specifics on definable dos and don’ts when creating websites that are accessible to users with disabilities.
What is addressed in the new guidelines? What isn’t? And where does that leave businesses looking for practical guidelines on making their websites compliant with ADA guidelines and avoiding accessibility litigation?
The publication as issued by the DOJ and found on the ADA site offers a statement on the DOJ's commitment to continue making accessibility a priority, which includes Justice's standing interpretation of the ADA's impact on web accessibility.
The statement gives examples of some common barriers to accessibility that site creators should be on the lookout for, but none of it is new information for those who are familiar with existing WCAG guidelines.
There is also some information on Title II compliance (state and local governments) and Title III compliance which is relevant to private businesses. But again, the new information doesn’t stray far from what has been published by the DOJ in the past.
The DOJ calls for private businesses to practice flexibility regarding accessibility compliance. The guidance also appears to give businesses leeway in interpreting and executing accessibility compliance guidelines, as long as their efforts fulfill ADA requirements.
An interesting note in the release also appears to give insight into how the DOJ connects the dots when determining accessibility. Rather than focusing on compliance to a standard, the DOJ talks about the ways in which an inaccessible site may result in discrimination (Section: State local governments). Though this isn't a new concept, it is one of the jewels of the statement given many accessibility professionals' strict adherence to standards first, rather than the intent of the ADA.
This “flexibility” and looseness of interpretation is likely what the drafters of the guidance were hoping to eliminate. Instead of leaving the interpretation and execution of nebulous guidelines up to businesses and governments, the 181 disability organizations were hoping for a comprehensive set of policies and regulations, a clear standard with which actual compliance could be determined and measured. And unfortunately, the DOJ statement and the ADA guidance did not include this.
Though it was not explicitly stated, last week’s statement seemed to point businesses and governments toward court decisions and settlements in several high-profile accessibility lawsuits as reference points to model their compliance.
The statement cited digital accessibility compliance lawsuits against Hy-Vee, Inc., The Kroger Co., Meijer, Inc., and Rite Aid Corporation as examples—more or less—of what not to do regarding digital accessibility. But the subsequent settlements could potentially serve as examples of how to course correct accessibility efforts and ensure ADA compliance after a violation.
Though that bit of guidance will undoubtedly be helpful to some businesses and government sites wishing to avoid similar litigation, it still falls short in formulating a cohesive, comprehensive, and precise list of boxes to check to ensure ADA compliance.
Ideally, last week’s statement will be the first step of many in achieving just that goal. As internet access is becoming essential to all aspects of daily life in a post-pandemic world, the issues of clarity and enforcement in digital accessibility become all the more urgent.
Creating universally recognized standards for digital accessibility would make the virtual world a more equitable place for people with disabilities. Still, it will bring peace of mind to businesses, governments, and digital creators who can be sure they are following the letter of the law.