This is post #13 in the ADA Compliance Series, which aims to outline a structure for validating and justifying a claim of “ADA compliance” for a website or other digital system. (a few notes and disclaimers on that)
As noted in my prior post on the breakdown of an ADA compliance complaint, the primary request in most ADA lawsuits is for injunctive relief from the court to force the defendant to change their corporate policies, practices, and procedures to ensure their websites are accessible.
Okay, so what policies, procedures, and practices are required?
Let’s start with the first easy answer, which is: there is no official answer. There isn’t much in the regulatory record that we can apply here. The overall requirements in the law and the regulations don’t go into any real level of detail here. We’re really left to our best judgement. We can, however, keep in mind the core regulatory requirement here:
“A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.” (28 CFR 36.302 (a)).
Which then put some limits around things:
- They’ve got to be reasonable
- They’ve got to be necessary to ensure access
- They’ve got to be directly related to the covered goods and services
- They can’t fundamentally alter the nature of the thing being provided
Of those, we tend to focus on the first one: what is the set of modifications that fit the definition of reasonable?
Our view is that those modifications would line up with whatever is broadly seen in the industry as reasonable practice for digital accessibility. That’s not necessarily “best practice,” it’s what the average person—that has a detailed understanding of digital accessibility—would say is likely to result in a full and equal experience for people with disabilities.
To determine that, we draw on twenty years of organizational experience and inform that with market data, which we collect annually to help answer this question. That’s provided as part of the then-current State of Digital Accessibility Report. This report compiles the opinions of over 1,100 professionals working in the area of digital accessibility and provides a data-driven view of what policies and procedures are broadly seen as “reasonable.”
What do plaintiffs ask for?
The other way to tackle the question is to look at a bunch of lawsuits (and settlement agreements or consent decrees when available) and see what plaintiffs are asking the courts for. The theory behind this is pretty simple. The plaintiffs are asking for injunctive relief to force the defendant to adopt or change certain practices, policies, and procedures. In many lawsuits, they list out those specific requests. If the defendant can show that they have already adopted those policies, practices, and procedures there’s potential that there is no live conflict for the court to address.
The following is a summary of what we see in the current crop of lawsuits as requests for policies, practices, and procedures that would address the alleged discrimination:
- Secure a Qualified Web Accessibility Consultant: Secure a web accessibility consultant that is qualified and can support implementing the requirements—typically an expert that is mutually agreeable to both parties.
- Monitor Compliance: Monitor the site for compliance on an ongoing basis. This includes quarterly monitoring of the full site for accessibility via a scanning tool. Some lawsuits refer to this as on a “periodic” basis—some cite this as ongoing.
- Annual Audit: Perform an audit of the website once a year to ensure it is accessible. Typically, this includes a technical audit under a standard like the Web Content Accessibility Guidelines (WCAG) as well as user testing by people with disabilities.
- Accessibility Section: Provide an accessibility section of the website linked to from the footer of the site. Occasionally, it is requested that this is provided via the International Sign of Accessibility (ISA). The ISA then links to a page that provides an overview of the accessibility program covering the accessibility program information, facts, policies, and accommodations.
- Accessibility Feedback and Support: Provide a method for users to provide accessibility feedback to the organization and get support for accessibility issues. Generally, this is providing some contact information for web accessibility questions. Sometimes these items are co-mingled, sometimes separated out. For our purposes, we’d counsel implementing them in conjunction to ensure a good user experience. Clearly the method of providing this feedback and getting this support needs to, itself, be accessible.
- Development Training: Annual or every other year training for everyone that touches the site and may impact its accessibility on the relevant requirements. This generally includes both people in development roles as well as people in content creation roles.
- CSR Process and Training: Ensure that there is a method and training for both receiving requests for accessibility as well as handling and escalating them properly. Ensure that your customer success representatives have training on working with people with disabilities, identify accessibility issues, and can route them properly for resolution.
- Web Accessibility Coordinator, Committee: Ensure that there is a specific person responsible for implementing web accessibility—typically referred to as a web accessibility coordinator. Occasionally, there are references to a web accessibility committee which is basically a higher-level guiding body that governs digital accessibility.
- Policy: Implement a web accessibility policy. This should include a statement relating to what your overall intent is (full and equal access), technical standards targeted for compliance (WCAG 2.1 is our default recommendation), that you perform user testing with disabilities (you should) and that if people have issues they should use the following approach to report them to you. Often it is requested that this be linked via the ISA from the homepage.
- User Testing: Ensure that the website is tested by end-users with disabilities. Typically, this is required specifically for the disability type represented by the plaintiff—notably people that are blind or visually impaired. There are requests for different cadences and frequencies of testing here as well.
- A Plan: A credible plan for web accessibility that includes any fixes to outstanding issues. We would counsel that you expose this plan publicly or, at a minimum, indicate it exists and offer to provide it to parties with reasonable interest.
Anything from the courts?
We’ve actually only seen one court make a conclusive ruling on this. In a landmark decision, Judge Robert Scola Jr. of the Southern District of Florida ruled that grocery chain Winn-Dixie’s website violated Title III and ordered them to make their website WCAG 2.0 compliant. The case, Gil v. Winn Dixie Stores, Inc., centered on the inability of the plaintiff, Juan Carlos Gil, to access Winn-Dixie’s website. You can read more about it in our post on the Winn-Dixie Decision in Florida.
For our purposes what is interesting is the judge ordered an approach roughly similar to what was outlined above:
- Winn-Dixie was required to make its website conform to the WCAG 2.0 Guidelines (including content from third-party vendors)
- Winn-Dixie had to provide mandatory web accessibility training to all relevant employees
- Winn-Dixie was required to perform ongoing scans of the site and address any issues that are uncovered
While that’s not a pattern of data, it does say that at least a court saw the injunctive requests of the plaintiffs aligning with what was needed for ADA compliance.
What is the scope limit?
One item to note is that the scope of policies, procedures, and practices is limited to those directly related to the covered goods and services. So, we’re only focused on items directly related to the goods and services. In line with that:
“The rule does not require modifications to the legitimate areas of specialization of service providers.” —1991 Preamble – Section 36.301 Eligibility Criteria
So, you do have to modify your policies and procedures to ensure that the goods and services you provide are accessible to people with disabilities. You do not, however, have to modify or change the administrative areas of your system or technology to ensure that access (At least under Title III of the ADA).