Department of Justice Reaches Settlement Agreement with Hy-Vee, Inc.

On December 1, 2021 the Department of Justice (DOJ) reached a settlement agreement with Hy-Vee, Inc., an employee-owned chain of almost 250 supermarkets located in the mid-west United States. We review the actions items and timelines. 

Settlement reached

The DOJ initiated its investigation after determining that Hy-Vee's Vaccine Registration Portal was not accessible to persons who use assistive technology like screen readers and those who have difficulty navigating online content with a mouse. 

Specifically, the DOJ enumerated the barriers users of assistive technology would encounter when accessing the website, including: 

1. images, buttons, and form fields that were unlabeled or had inaccurate alternative text or labels, and
2. pop-up windows, error messages, and drop-down menus that were not reported to screen readers

The DOJ alleged that due to the barriers encountered by users of assistive technology, some customers were unable to fully access Hy-Vee's online Vaccine Registration Portal. 

Hy-Vee denies it has violated the Americans with Disabilities Act (ADA). 

Hy-Vee action items

In its agreement with the DOJ, Hy-Vee has agreed to 6 action items related to web accessibility, including: 

• Vaccine Registration Portal Accessibility Conformance. Within 10 days of the Effective Date of the agreement, Hy-Vee will remediate accessibility barriers that prevent a person with a disability from accessing "substantive" information. Any content that leads to Hy-Vee's Vaccine Portal Registration site must meet WCAG 2.1 guidelines within 90 days. 
• Website Accessibility Notice and Feedback. Within 10 days of the Effective Date of the agreement, Hy-Vee will provide an accessibility notice that includes alternative ways to contact the organization and access content. The notice is required to include a telephone number that instructs customers to contact the organization if barriers are identified at a number that is staffed 24 hours a day with representatives that are trained to make vaccine appointments. 
• Automated Website Accessibility Testing. By the date of the agreement, Hy-Vee is required to obtain an automated testing tool and report the results of ongoing tests to the DOJ each month for the life of the agreement. 
• Website Accessibility Consultant and Evaluation. Within 5 days of the Effective Date of the agreement Hy-Vee is required to retain an independent consultant (approved by the DOJ) to advise Hy-Vee on how to conform to WCAG 2.1 and stay compliant, and verify that content conforms to WCAG 2.1 by the agreed-upon timeline. 
• User Accessibility Testing. Hy-Vee is required to user test Vaccine Content on a monthly basis by at least one user of assistive technology (specifically screen readers) and one person with a disability who cannot use a mouse. 
• Website Accessibility Training. Within 40 days of the Effective Date of the agreement, and at least once annually, Hy-Vee is required to provide training to all staff who design, develop, maintain, manage, or have responsibility for the content and format of Vaccine Content. 

Key takeaways

Gone are the days in which organizations are given 12, 24, 36, 48, and 60 month timelines to meet conformance thresholds. 

What is most striking is the quick turnaround the DOJ now requires. Of course, the settlement itself is largely about one type of technology and functionality (the Vaccine Portal Registration), but given the requirements of this agreement, it appears the DOJ is communicating it has a much more granular understanding of accessibility initiatives and the true cost, resource requirements, and turnaround associated with implementation. 

Title II and III covered entities should take account of the DOJ's expectations in this agreement and adjust accordingly. 

Read more: Automated Accessibility Testing Is Not a Shortcut.

Lastly, although it is not unusual for the DOJ to require organizations to go beyond automated testing, executive leadership should note the requirement that Hy-Vee engages users with disabilities and create a checks-and-balance system that mandates the use of an independent consultant. 

Creating a checks-and-balance system ensures designers and developers have the resources needed to accurately modify content and identify barriers without internal and external influences created by the complexity of organizational politics. 

Read more: Eight Questions to Ask a Digital Accessibility Vendor.

Conclusion 

Accessibility professionals looking to implement accessibility initiatives should identify ways to overcome organizational resistance to accessibility by proactively engaging customers with disabilities and building executive-level support − this can be done using maturity models, leveraging external mandates, or making the business case for accessibility.

The DOJ is sending a clear message that accessibility is no longer a white paper with quick tips. WCAG 2.1 may not yet be the law of the land, but organizations that fail to provide accessible technology or clearly communicate a standard that ensures technology is accessible will almost certainly be required to adopt it at some point. 

Although the path to accessibility remains flexible at this point, the destination is clear.