A smartphone, tablet, and laptop showing an image of a person in a wheelchair and the letters ADA

ADA and the Internet: ADA Settlements – Third-Party Solutions and WCAG Carve-Outs

Written by: Beth Crutchfield

This is the fourth installment in our ADA and the Internet Series

Third-Party Solutions

Third-party services and content are often carved out in agreements to allow for time to evaluate new and alternative solutions. We have also seen ads and non-functional components of websites be carved out for similar reasons. A reasonable commitment for most parties is that when evaluating, purchasing, or renewing third party solutions, accessibility will be evaluated as part of the process.

One way to ensure delivery of accessible solutions by third-party providers is to revise your new contract language reflecting your organization’s policy on accessibility and what accessibility requirements your organization has adopted (e.g., WCAG 2.0 AA). Additionally, all current contracts should be refreshed with this language at the renewal stage to ensure conformance across an organization.

Technical Standards

The default technical standards for settlement are the WCAG 2.0 AA requirements. Conformance claims should occur in line with the process outlined in the WCAG documents. These are the de-facto standards and we recommend them as the base for most settlements.

That noted, the use of the WCAG 2.0 AA requirements as a technical standard is a matter of settlement choice, not regulation or law. As such, we recommend asking for flexibility in a few areas as it relates to the technical standards:

  • Future Proofing – If the DoJ regulations are significantly weaker than a specific agreement, we would have the option to use those regulations on publication.
  • Mobile Exceptions – There are a variety of situations where certain aspects of the mobile experience can’t be made fully accessible because the device doesn’t support some of the accessibility features.
  • Accessibility Supported – As long as we can show the proper technical implementation, we would have a safe harbor if the technology itself is causing an accessibility violation.
  • Video – We have started recommending that the CVAA IP video regulations (47 CFR 79.4) govern for web and mobile systems.

WCAG Carve-Outs

In our experience, certain portions of the WCAG can reasonably be carved out from settlements without materially impacting the accessibility of a final system on a practical basis. These requirements fit one of a few profiles:

  1. They have no material impact on the user experience but are highly likely to be violated in a modern development environment—and in a systemic, costly-to-fix fashion.
  2. They aren’t technically feasible in the current development environment.

We recommend clients ask that a few of the items that don’t actually impact the user experience be removed from the WCAG requirements. This can be immensely helpful in focusing development activities. The scope of these carve outs, however, is relatively limited.

Stay Tuned…

Watch for the next installment in this series, ADA Settlements – Policies, Public Statements and Personnel