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ADA Compliance for Private Sector Websites – Current Guidance

Timothy Stephen Springer 02/26/13

Our private sector clients often ask us about what is the target set of requirements they should aim for with respect to conforming to the American’s with Disabilities Act.  Specifically the Title III, public accommodations, requirements of that act.  Short version, we recommend you conform to WCAG 2.0 A and AA requirements.

As with all things web and ADA related it is important to note that there are no specific published technical requirements that define how the ADA is applied to the Internet. This introduces a level of risk to any organization – public or private – since the target compliance requirements may not conform to final U.S. Department of Justice (DoJ) issued policy.  However, a variety of public and private sector organizations have been sued for the inaccessibility of their websites under the ADA making conformance of the ADA a priority.  So what’s a site to do?

The closest thing to current official policy is a DoJ Advanced Notice of Proposed Rulemaking (ANPRM) relating to Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.  This ANPRM was published about two and a half years ago and indicates that the DoJ sees the WCAG A and AA requirements as the logical implementation requirements for the web-based portion of services for organizations covered under the ADA. The U.S. Access Board’s recent ANPRM on the Section 508 Refresh provides a similar blanket mandate for the use of WCAG A and AA requirements as the baseline for the updated Section 508 requirements.  In addition, many recently settled web accessibility cases relating to the ADA have been settled by requiring the defendant organization to conform to either A or AA requirements, Section 508, or to a mix of both.

Therefore, while SSB stresses that no specific technical standards for the ADA compliance of web sites exist, SSB is reasonably confident in selecting the WCAG 2.0 A and AA requirements as the likely ADA technical standards.  The WCAG 2.0 A and AA requirements are also the default standards SSB sees outside of the U.S. in other web accessibility legislation, regulation and standards – so conformance with them is likely to serve many organizations well.

Finally, it is worth noting that the DoJ is currently in a rulemaking process for Title III of the ADA, which has to do with public accommodations. Public accommodations are broadly defined, and are likely to include a wide swath of the private sector.  The Department of Justice has issued guidance that a Notice of Proposed Rulemaking (NPRM) will be issued in December 2013 to further develop the requirements for Title III of the ADA. These regulations will eventually amend 28 CFR 36. The Regulation Identifier Number (RIN) is 1190-AA61 and more information on RIN 1190-AA61 can be found on reginfo.gov.

1 Comments

  1. Recommending your clients to conform to WCAG 2 A and AA requirements is probably the best thing you can do, specifically in the way the government is considering AA61.

    This post is a little confusing to me, but it’s probably just because I’m ‘Special’. : )

    The ANPRM you mention above regarding both state and local governments and Public Accommodations was recently split into two separate ANPRMs. The state and local government ANPRM, AA65 (http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201210&RIN=1190-AA65) is expected to become a Notice of Proposed Rule-Making as early as July of this year. The one you mention, AA61, was originally combined but now covers only Public Entities. We might see this in December of this year according to their time-table.

    Public accommodations can be “broadly defined”, but they are still more specific than the link above illustrates. The original, combined proposal (https://www.federalregister.gov/articles/2010/07/26/2010-18334/nondiscrimination-on-the-basis-of-disability-accessibility-of-web-information-and-services-of-state) states public accommodations as being:

    “(1) An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor;

    (2) A restaurant, bar, or other establishment serving food or drink;

    (3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

    (4) An auditorium, convention center, lecture hall, or other place of public gathering;

    (5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

    (6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

    (7) A terminal, depot, or other station used for specified public transportation;

    (8) A museum, library, gallery, or other place of public display or collection;

    (9) A park, zoo, amusement park, or other place of recreation;

    (10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

    (11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

    (12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.”

    I’m only speculating, but based on the comments they received for AA61, separating the two seems like the best option. A number of comments suggested not using Section 508 because it was so outdated, and there was no clear date that Section 508 Refresh would ever be given in 2010. By separating the two, my belief (pure speculation) is that they will tell State and Local government entities to comply to Section 508, since the Refresh is heavily focused on WCAG but also covers physical E&IT. Then they will tell those 12 categories to deal with WCAG 2 levels A and AA, especially since WCAG 2.0 is now an ISO specification (ISO 40500).

    So in a long and lengthy comment (I told you I was ‘special’), your recommendation for private sector clients to conform to WCAG is quite astute, in my opinion.

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