For decades, we’ve had one question in the digital accessibility industry: what does “ADA compliant” mean for my website, mobile app, electronic document, or whatever random piece of technology I have?” There are a lot of opinions on this in the greater accessibility community, but they tend to be unstructured and not aligned with how most attorneys – plaintiff or defense counsel – view the matter. Further, those opinions usually don’t lend themselves to the rigorous test or defense that’s typical of litigation. We (in the accessibility community) generally don’t get too far before we arrive at “it’s just not accessible,” or, “it’s not WCAG compliant,” as the bedrock of our arguments.
The ADA Compliance Series will aim to outline a structure for validating and justifying a claim of “ADA compliance” for a website or other digital system.
As part of my COVID-19 imposed quarantine, I’ve had a lot of (compulsory) time to work on the question of ADA compliance. When looking at other statutory requirements applicable to digital accessibility – notably Section 508 of the Rehabilitation Act and the 21st Century Communications and Video Accessibility Act (CVAA) – I’ve found it helpful to trace through the requirements from the law to regulations (and the rulemaking process) to the current mechanics of enforcement. Doing that allows you to triangulate on a view of what, right now, constitutes a reasonable definition of “compliance with the law.”
A few critical notes and disclaimers for this series as a whole:
- These are the opinions of someone that would qualify as a technical expert on matters of digital accessibility. It is not the opinion of a person that would qualify as a legal expert or is an attorney. These are plain language interpretations of the relevant laws, regulations, and lawsuits. They are not nor should they be construed as legal advice. You need an attorney to opine on a legal strategy here, either in general for the avoidance of lawsuits, or in the context of a specific lawsuit. (As a slight aside, at Level Access we’d advise specialized counsel in matters of digital accessibility. This is complicated, tricky stuff and having attorneys that work on it all day every day is a good investment.) As such: (i) we are broadly ignoring matters related to “The Law” and instead focusing on a plain language review of things; and (ii) this as a compliment to a duly developed legal strategy – not a replacement for one.
- There’s a big difference between achieving what we would view as compliance with the law and not getting sued. Even a wholly “compliant” website might face lawsuits and be forced to respond to them. Our view, however, is that in the fullness of time if our clients do the real work of accessibility it should give them a strong, legally defensible position. As the expert counseling that definition, we’ll back you up on that and take on the cost of those lawsuits for you. So this isn’t an exercise in creative writing for us. It’s the basis for a litigation cost indemnification framework we use with our customers on ADA compliance claims pertaining to their digital assets.
- The entire series is principally focused on ADA Title III which relates to the accessibility of places of public accommodation. The other components of the ADA are wholly worthy of analysis but that’ll be a separate, long series on its own.
- The ADA is meant to be applied in specific situations and the facts of those situations matter. This set of posts is a framework we use when determining compliance with the ADA. It’s not an absolute and it’s meant to be applied in the context. So proceed with appropriate and due caution in applying it to your situation.
- This is complicated stuff. It’s complicated, not because we didn’t take the time to make it simple, it’s complicated because that’s the nature of the problem. So if you find yourself saying, hunh, I don’t get this – I could use some help – ask for help. It’s what we do as a business.
With that in mind, Here are the basic requirements we see for a valid claim of ADA compliance:
- Consistent with the law – Any valid claim of compliance with the ADA needs to ensure conformance with the requirements of the law itself. Ideally, we should be able to start with a plain language reading of the law, add on more nuanced interpretations from the courts where relevant, and create a workable definition of compliance covering the letter and spirit of the law.
- Consistent with the regulatory record – The U.S. Department of Justice (DoJ) is the agency broadly charged with promulgating regulations related to Title III of the ADA. While there aren’t regulations that clearly define how the ADA applies to websites, that doesn’t mean the regulations are without use. In fact, a lot of the digital issues we are grappling with have analog equivalents that can reasonably be applied. So we’ll use the regulatory record when it can be judiciously and reasonably applied to technology.
- Supported by relevant technical guidance – The DoJ maintains a large amount of guidance on the technical implementation of the ADA. They do this in conjunction and consultation with the U.S. Access Board. While a building code for a physical place isn’t – definitionally – relevant to a website, there are some portions that can be used to inform an approach to digital accessibility. So, when we can reasonably apply those concepts to the question at hand we will.
- Helpful in the current enforcement and litigation environment – Abstractly, we don’t have to care about the current enforcement and litigation environment when making a claim of compliance. Practically, all of this is being made in a real-world context of litigation. The utility of such a claim in defending – or ideally mooting – a claim of non-compliance seems a reasonable item to include in developing such an approach.
- Reasonable – The concept of reasonableness, and it’s inclusion in this list, could be debated from now until the end of time. In our definition, we’ll simply frame it up as the combination of appropriate and fair: sensible. Practically, we’ll view the reasonableness of a claim of compliance as it relates to a given system (i) in the context of that which is technically achievable in the system under discussion, and (ii) the user experience of individuals with disabilities interacting with the system. This isn’t tied directly to the concept of a “reasonable person” in the context of the law, but the basic idea lines up with that.
Lest there be any confusion, there are a variety of fixes for the ambiguity here. The DoJ could take regulatory action to clarify the situation. Congress could modify or extend the ADA to address the ambiguity. Courts could step in and provide clear guidance that can be broadly applied.
For a variety of reasons – far too numerous to discuss here – we view all of those scenarios as unlikely in the foreseeable future. There aren’t clear laws, rules or judicial guidance on what compliance means for websites. That’s the situation and we’ll be here for a bit. The lack of those does not, however, mean we are wholly without guidance. We simply need to create that for ourselves and see if it stands up to scrutiny. That’s in no way a replacement for changes to the law, the promulgation of actual rules under a regulatory process, or clear direction from the courts. It is, however, better than no point of view on the matter. It’s also better than a point of view on the matter purely driven by personal preference versus a logical, structured reading of laws, regulations, lawsuits, technology, and the needs of people with disabilities.