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This is post #22 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).

One of the comments that we get from customers goes something like this:

“You told me to do X, Y, and Z. I spent the last two years doing those things. Now you are telling me I also need to do A, B, and not Z. What’s going on!?!?”

Often, far more colorful language is included in the above comment and the client, rightly, is exceptionally frustrated that it feels like we are “moving the goal posts,” or “changing the definition of success” on them. I emphasized rightly in the last sentence as we should all recognize that is a valid and completely understandable reaction from a client. Imagine if the following happened to you:

  • You were told to do a series of complicated, expensive things, to accomplish something
  • You did them, it took you a few years and a lot of money, but you did them
  • You were then told—surprise—there’s more stuff you have to do

You’d have a negative reaction. The reason for this is we—the digital accessibility industry – have often failed to manage our client’s expectations about the changing nature of these content updates, technology, and guidelines. The clients think—reasonably—the requirements are set. In practice, though, digital content changes over time and solutions evolve and change. Implementors cannot simply fix issues in a vacuum without validation or awareness of changes in technology.

There are four big reasons why your approach must be flexible:

Content Changes Over Time

Many sites are large and dynamic with content that is updated and uploaded by multiple people across the organization. Each page may have different states, variations, and permutations. Third-party content is frequently added and changed on sites, sometimes without considering its implications for accessibility. When functional and manual testing is performed on a site it is typically on a representative sample of the site and these findings must then be implemented across all pages of the site. As content changes across the website, the new content must be monitored, audited, and remediated as needed to ensure that new content is accessible to people with disabilities. If an organization doesn’t monitor, scan, and address content from third-parties as well as train their staff on creating accessible content, then inaccessible content will continue to make it into the site. Few sites today are static pages that haven’t changed in two years.

Technology and Implementation of the Guidelines Change

Two big shifting forces in technology also impact the application of the guidelines. As the underlying technology used by people with disabilities—assistive technology and accessibility features—changes what is technically achievable moves over time. In turn, that causes the recommended approaches to shift. In addition, the underlying technology platforms this is all implemented on—generally web browsers and mobile platforms—also shift in terms of what and how they support accessibility

The most commonly used digital accessibility standards are the Web Content Accessibility Guidelines (WCAG). There have been two iterations of WCAG 2 (2.0 and 2.1) already and another (2.2) is expected later this year. These guidelines are functional in nature and are technology-neutral – the techniques used to meet the WCAG criteria are not immutable, unchanging, nor handed down from high on stone tablets. As browsers and assistive technology change, what we, as an expert in this space, will tell you is that some aspects of conformance will differ from six months ago and will be different than what would be considered compliant six months from now. That’s the nature of the flexibility in how the guidelines can be met – not a function of some deficiency in a digital accessibility vendor.

As an example, the commonly used browser and assistive technology combinations have markedly changed over the past several years and the support for accessibility features such as visual indication of focus has changed in browsers recently, meaning the default implementation in some browsers now are more compliant than they were several months ago.

User Expectations Change

The nature of the ADA is that it requires full and equal use. As part of determining if the use is equal, one must understand what the user expectations are for the use of a given system. If the “average” user expects it to behave in this fashion,  then it’s probably equivalent for the average user with disabilities to have the same expectation. Similarly, if the systems are equally bad for all users, that’s actually—and pretty clearly arguably—equal under the legal and regulatory requirements.

The Legal Environment Changes

The area of ADA compliance as it applies to websites is still highly nebulous and there are a large number of pervasive legal theories and regulatory interpretations that are untested. As different court rulings arise, they may cause us to change our view of what “compliant” is. Further, as the tactics of a specific matter dictate attorneys—plaintiff or defense—may argue different views and positions on the matter.

There’s an interesting snippet I pulled out from a recent lawsuit we were reviewing that sums up some of this in the context of a discussion around auxiliary aids and services. As part of a Ninth Circuit decision in Enyart v. National Conference of Bar Examiners, Inc., (630 F.3d 1153, 1163 (9th Cir. 2011)) the court noted, “assistive technology is not frozen in time: as technology advances, [ ]accommodations should advance as well.” That aligns with the overall view of the ADA which is meant to be flexible and change over time as technology and user needs advance.

Similarly, there was an interesting paper developed for the International Franchise Association’s 52nd Annual Legal Symposium (2019) titled “How to Best Avoid or Defend an ADA Drive By Lawsuit.” It’s a great discussion of the application of many of these ADA concepts in the context of franchise law. One particularly interesting point they made on the topic of digital accessibility requirements:

“Many of these concepts sound abstract because they are far more subjective than the standards applicable to physical barriers. At first glance, WCAG, its levels, and its “success criteria” may seem like a fairly objective way to measure website accessibility. In reality, however, measuring website accessibility will never be as clear cut as counting parking spaces, measuring the height of a mirror, or the angle of a ramp. Websites develop over time, their content is dynamic, and their design features are interrelated, with changes to one area sometimes inadvertently impacting the functionality of another. Some WCAG guidelines are objective, such as the use of alt text, while others are subjective, such as whether headings, labels, links, and other features adequately and predictably allow disabled users to navigate a website.”

Which to me makes an apt summary. The reason compliance for websites seems to change is that the standards application changes and the underlying website itself is constantly changing. That, practically, means that the policies, practices, and procedures an organization must control for accessibility are significantly more important in the digital medium than they are in the real world.