On March 18 the Department of Justice published its Guidance on Web Accessibility and the ADA. Anything that helps businesses understand their ADA obligations is helpful, but the fact that this Guidance was posted on the beta site of ADA.gov tells you that even DOJ has low expectations. Those low expectations are justified because the Guidance doesn’t define website accessibility and therefore does nothing to help businesses have certainty about their compliance with the law.
The Guidance starts with a broken promise:
This guidance describes how state and local governments and businesses open to the public can make sure that their websites are accessible to people with disabilities as required by the Americans with Disabilities Act (ADA).
It does no such thing. Instead it points out a few common problems and lists resources that might be helpful to experts in web development. Nowhere does it provide any set of actions or website features that are guaranteed to satisfy the ADA. In fact, it doesn’t even state clearly what DOJ has said in the past; that is, that every website is subject to the ADA even if not associated with a physical place of business. Here is how DOJ states its position:
Title III prohibits discrimination against people with disabilities by businesses open to the public (also referred to as “public accommodations” under the ADA). The ADA requires that businesses open to the public provide full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people with disabilities.
DOJ apparently wants “businesses open to the public” to means the same thing as “public accommodation,” but the Ninth and other Circuits disagree that the phrases are equivalent. The same ambiguous use of “public accommodation” and “open to the public” occurs throughout the Guidance, although it isn’t clear why DOJ won’t just come out and say that it believes every website is a public accommodation no matter what any Circuit Court of Appeals might say.
The actual guidance about website accessibility is a mishmash of qualified statements that end up saying almost nothing. For example, DOJ asserts 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.
This is true as a very broad statement of the law, but it doesn’t remind businesses that almost any means of providing online services other than an accessible website will be viewed by DOJ as insufficiently equal. Can DOJ just say what it means? There is a choice in theory, but in fact if services are provided online DOJ will insist that they be accessible online regardless of the other means by which the services are offered.
DOJ seems to be a little more specific when lists seven common problems with accessibility, but then it reminds us this is not a complete list: “This is not a complete list of things to consider.” Where can a business find a “complete list?” DOJ lists a bunch of resources, including the W3 consortium website for the Web Content Accessibility Guidelines, but all it says about these is “existing technical standards provide helpful guidance.” Businesses do not need helpful guidance; they need rules so they know they will not be subject to arbitrary prosecutions or private litigation. Those with disabilities need the same thing so they know what to expect with any given website. It’s nice to know that WCAG 2.1 AA is out there, and a look at other DOJ press releases indicates that WCAG 2.1 AA is the best guess for what DOJ wants today. However, there is no telling what DOJ will want tomorrow, and private plaintiffs’ firms and some courts don’t treat any version or success level of WCAG as sufficient.³
What if you want to know whether your website is accessible? DOJ points out what experts in the area know; that is, automated solutions are unlikely to identify or solve all problems and do identify “errors” that don’t interfere with accessibility. You can’t rely on them, but DOJ’s suggestion about dealing with that unreliability isn’t very comforting: “Pairing a manual check of a website with the use of automated checkers can give you a better sense of the accessibility of your website” While it is certainly nice to have a “better sense” of the accessibility of a website businesses need something definite – yes it is or no it is not accessible. They need an exact definition of accessibility so they know what to do in order to be exempt from litigation by DOJ and private plaintiffs.¹
It’s worth something to know you’re going to be hit by a train even if no one will tell you how to get off the track² so this Guidance isn’t completely useless. Nonetheless, it fails to deliver what businesses need. They needs fixed safe harbor definition of an accessible website, and they need relief from abusive website accessibility litigation. Moreover, by failing businesses the Guidance fails those with disabilities as well because businesses cannot be expected to invest in technology if they can’t be sure it will bring them into compliance with the law. DOJ needs to spend less time on press releases and more time on fulfilling its regulatory obligations under the ADA.
¹ Imagine if DOJ’s advice on the slopes of sidewalks was “using a high quality digital level will give you a better sense of the accessibility of your sidewalk.” As advice it is useless – businesses what to know what the maximum accessible slope is, not how you measure it.
² The resources offered in the Guidance are worthless to most small businesses because they are simply too technical. The first link offered, to the 18F Accessibility Guide, takes you to a cover page to a total of 26 other websites that have accessibility information, including another “tools” link that provides links to an additional 22 testing tools. None of the links go to material that anyone but an expert in website development could possibly understand. This is great for a business large enough to have an IT team and budget, but those businesses already know where to look for resources. This Guidance is useless for any business that doesn’t generate sufficient profits to pay for a dedicated IT staff.
³ I think it is interesting that the government has promulgated specific rules for accessibility of government websites, as DOJ admits, but DOJ won’t give businesses the benefit of the exact same rules. Is it bureaucratic arrogance? Some kind of power struggle between DOJ and the Access Board? Who knows. There are plenty of hardworking nice folks at DOJ, but as an institution it apparently doesn’t give a damn about the real problems of real businesses even though DOJ itself created those problems when it decreed, twenty years ago, that websites have to be accessible but then refused, and refuses even to this day, to say what “accessible” means.