There has been plenty of commentary about the new DOJ website accessibility regulations for Title II entities, which fall into the good news / bad news category typical of all regulations. The good news is they have adopted WCAG 2.1 AA as the technical standard, using a standard everyone is or should be familiar with. They have also given local governments a few years to comply, a much needed break that, if applied to Title III regulations, will put a real dent in abusive litigation. The bad news is that DOJ has decided to use a generally inflexible technical standard that, as any expert will admit, can never be met. Equally important, it has denied local government the option to use alternate conforming versions as a means of compliance despite WCAG 2.1 AA’s recognition that such versions provide equal access. I’ll start with the problem of using a technical standard and, in my next blog, talk about the alternate conforming version issue.
The new regulations require that local governments perfectly meet an impossible to meet technical standard. I say impossible to meet not only because every expert I’ve talked to agrees with this, but also because the biggest government of all – the federal government – hasn’t managed to comply with it.¹ If the Department of Justice cannot manage to comply with WCAG 2.1 AA how does it expect Smallville U.S.A. to do so?² This is not an idle question. Section 508 of the Rehabilitation Act – which governs federal website accessibility – does not provide for a private cause of action in most cases.³ Title II of the ADA, on the other hand, allows anyone claiming an injury from an inaccessible website to sue the state agency or municipality that operates it. It’s easy to impose a standard on others that you don’t have to meet yourself, and that what DOJ has done.(4)
This isn’t to say it is easy to define a rule about what the world should be like that makes sense in the world that exists, especially when the rule applies to a huge range of entities with a huge range of budgets. In this case though there is a fundamental problem DOJ has not recognized; the three way disconnect between the complexity of a website, the size of the entity that maintains it, and the cost of bringing it into conformance with WCAG 2.1 AA.
One of the tenets of the original ADA regulations concerning physical accessibility was that the cost to implement them would be modest in new construction and limited in old construction to what was “readily achievable.” Concrete ramps, accessible parking signs, wider doors and the like are relatively cheap. Where changing an existing building under the readily achievable standard the kinds of changes that are very expensive – such as those that require work on a load bearing wall – are recognized as being unduly burdensome.(5) There is no similar exception in the new website design regulations. They do recognize the possibility of an undue financial burden, but DOJ seems to have adopted a standard that any cost up to 1% of the budget of the entity in question is not too burdensome. 1% is a significant chunk of the budget for any municipality and a number high enough to mean “undue burden” will never be a good defense.
That 1% number comes from DOJ’s estimate of the costs and benefits of the new regulation. For small entities DOJ’s figures show much smaller annual costs for compliance over a ten year period, but of course under these regulations any website remediation must be accomplished within three years, not ten. In addition, ongoing costs of around $10,000 a year (DOJ’s estimate for small towns) bear no relation to the immediate cost imposed by the regulation.(6) Most important, looking at average costs based on entity size disregards the reality that website complexity is not related to entity size. One promise of the internet is that it allows even the smallest entity to provide services it could never afford to provide any other way. However, if a small town website offers the same services as the website of a much larger city, the cost of compliance will likely be the same for both despite the very unequal impact on their budgets. The immediate impact of the rule, at least for covered entities that try to comply, will likely be that smaller entities with more limited budgets begin to scale back the services they offer on the internet so they can more easily comply with WCAG 2.1 AA. Creating equality by making the internet less useful for non-disabled users is a poor way of accomplishing the goals of the ADA.
DOJ did face a real problem when developing these regulations; that is, the ability to create accessible websites and applications at a reasonable cost depends on the existence of tools and trained developers. DOJ’s cost estimates for smaller Title II entities were based on looking at about 87,000 counties, towns, junior colleges and other entities. If all 87,000 tried to find the resources needed for WCAG 2.1 AA compliance the existing accessible development community would be very happy, but also overwhelmed. When too many customers chase too little talent the result is an inevitable increase in costs, something it does not appear DOJ has taken into account.
I do have a positive suggestion for what DOJ could do. DOJ should have adopted a perfectly fair implementation deadline; that is, Title II entities would be required to conform to WCAG 2.1 AA just as soon as the General Services Administration reports that all websites covered by Section 508 of the Rehabilitation Act conform to WCAG 2.1 AA. More seriously, DOJ could agree that a website satisfies the requirements of the ADA if it delivers the essential services it was intended to deliver in a non-discriminatory manner. I’ll discuss the difference between the idea of a website as a means of delivering services and a website as a place in my next blog. In the meantime, I think it is fair to say the adoption of an impossible to meet technical standard was simply a very clumsy way and even ineffective way to accomplish what the ADA is intended to accomplish.(7)
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¹ A recent GSA survey of government websites found “The government as a whole is not meeting the minimum standard or legal obligation to provide equal access to all members of the public and federal employees with disabilities.” To be more specific, more than 70% of federal government websites do not meet the Section 508 standard, which is, by the way, WCAG 2.1 AA. See, GSA Report. There is, however, a big difference between the federal government and state and local governments. Section 508 does not let ordinary disabled citizens sue the federal government because it failed to provide equal access to its websites. The ADA does permit private lawsuits, exposing Title II entities to litigation risks and costs that DOJ, as a federal agency, will never face. It’s easy to make rules for others that you don’t really have to adhere to yourself.
² Some DOJ websites had very high conformance ratings, but many did not or had not been tested.
³ See, D’Amore v. Small Bus. Administration, No. 21-CV-01505 (CRC), 2021 WL 6753481, at *3 (D.D.C. Sept. 16, 2021) for a discussion of the limited availability of a private cause of action against federal agencies for violations of the Rehabilitation Act.
(4) Technical standards that must be perfectly met are the serial lawsuit filer’s dream because it is easy to file a suit in good faith over what may be trivial failures to comply but expense to prove as a defense that the failures do not in fact deprive a disabled user of equal access. This is not a problem for DOJ. It is, of course, required to follow the law; however, the penalty for non-compliance is a mild scolding from the General Services Administration somewhere after page 100 in Appendix D to a 391 page report, and even that comes with GSA suggesting that more money be budgeted for compliance. What agency wouldn’t like more money?
(5) The 2010 ADA Standards for Accessible Design include in the definition of “technically infeasible” work on load bearing walls.
(6) DOJ’s comparison of costs and benefits is somewhat deceptive. In calculating benefits DOJ considered benefits to disabled and non-disabled users alike. If there is a feature in a website that interferes with non-disabled users as well as disabled users then, by definition, the interference is not discriminatory. The ADA prohibits discrimination, not bad web design, and in calculating the benefits of the new regulations any benefit to non-disabled users must be excluded.
(7) Here I will acknowledge another problem DOJ faced. Creating and adopting regulations is a very slow process. Technological change is a very fast process. When DOJ first began work on these regulations a decade or more ago the internet was a very different place and mobile apps as a means of delivering services were far less common.
