Regulation, Please!

Colleges and universities across the country are currently under investigation by the Education Department’s Office for Civil Rights for failing to make their websites accessible to people with disabilities.

Many businesses are also facing lawsuits because the Department of Justice has concluded that websites are places of public accommodation, requiring accessibility to all visitors, but it has failed to regulate standards of accessibility. This makes every category of business, including private-sector, public-sector and education, vulnerable.

Making things even more complicated, the progress that had been made over recent years in establishing guidelines and protocols is now in jeopardy because in 2017 the White House reversed its commitment and instead decided to undo the regulatory process, leading to a reverse in website accessibility decisions including halting enforcement actions against businesses with relaxed website accessibility. The courts are now left to be arbiters of these standards.

Awareness of the importance of web accessibility has grown among university and business leaders in recent years partly due to numerous well-publicized lawsuits and now due to the uncertainty about enforcement, litigation is increasing quickly.

Universities that receive federal financial aid are required by law to make reasonable accommodations to ensure their web content is accessible to everyone, including but not limited to people who are blind, deaf or have limited mobility. This is a huge challenge. Educational institutions alone can have thousands of web pages, with hundreds of faculty members and staff constantly adding, removing or changing content, making it difficult to monitor content for accessibility.

Regulation guidance is needed, and previously when the DOJ signaled that the minimum standards and guidelines created by the World Wide Web Consortium (W3C), (which is an organization devoted to the development of WWW protocols and guidelines) would become the working model, many legislators from both sides of the aisle, even those who are typically hostile to regulation, joined to urge the implementation of uniform accessibility standards. Until the DOJ acts, the threat of non-compliance lawsuits will continue to grow.

Thousands of website owners around the country are being sued for claimed ADA violations. Per the New York Law Journal by the mid-point of 2018, over 1,000 lawsuits had already been filed—more than all cases filed in 2017.

ADA website cases are difficult to defend because the U.S. courts have not addressed what should constitute ADA minimum “accessibility,” nor has any court endorsed any standard other than acknowledging that Web Content Accessibility Guidelines (WCAG) 2.1 has emerged as a de facto standard.