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The Biden Effect: Expect DOJ Action in Digital Accessibility

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As Seyfarth Shaw wrote after the Presidential election, the Biden administration will be much more active in the Department of Justice’s (DOJ) enforcement of Title III of the Americans with Disabilities Act, particularly when it comes to digital accessibility.

That may sound like a bold prediction but it’s actually not.

Under the Donald Trump administration, the DOJ not only didn’t open any website or mobile app accessibility investigations, investigations that were pending from the Obama administration were shelved.

So anything more than nothing will be a step up and Joe Biden has already made it clear that he is committed to advancing disability rights.

What Will Be Required?

Because the ADA does not explicitly outline what makes a website or mobile app accessible, the best practice for compliance is to follow what the DOJ has mandated in past settlements and consent decrees.

The DOJ is the authority when it comes to the Americans with Disabilities Act. The Civil Rights Division of the DOJ oversees Title II and Title III of the ADA, which means the DOJ both enforces the ADA and can create rules to help interpret the ADA.

I reviewed eight DOJ cases that either revolved around or consisted of significant web accessibility stipulations: edX, Peapod, Miami University, HR Block, McLennan County, Carnival Cruise Line, National Museum of Crime and Punishment, and QuikTrip.

After reading through the agreements, there is a very consistent pattern of core requirements the DOJ wants to see from website and mobile app owners/controllers.  I’ve broken these up into different sections.  Let’s start with the technical standard section.

Technical Standard

  • Websites and mobile apps shall conform to WCAG 2.0 AA, at a minimum.
  • Conformance must be maintained through all asset updates, additions, or changes.
  • Conformance is not required for third-party links.
  • Conformance is required for third-party content and integrations.
  • Procurement shall seek WCAG 2.0 AA conformance from vendors.

WCAG 2.0 AA, at a minimum, is the standard the DOJ has pushed for in the past.  Notice the “at a minimum” add-on.  If there’s one substantial shift in the DOJ’s stance, I think we’ll see WCAG 2.1 AA become the new required standard; 2.1 better addresses the mobile-centric world we live in.

Accountability

  • An employee shall be designated as the Web Accessibility Coordinator who shall report to an executive of the organization.
  • A Website and Mobile App Accessibility Policy should be adopted and implemented.
  • The policy shall be distributed to all web content personnel, technical support, and customer service.
  • Mandatory training shall be provided to all web personnel, including contractors.
  • Existing bug fix policies shall include accessibility barriers and be prioritized at the same level as any other equivalent loss of function for individuals without disabilities.
  • A link to a statement of the policy shall be provided from the homepage. The linked page shall include a toll-free phone number and solicit feedback from users.  There should be several ways to provide feedback, including via email, form, and phone number (with TTY).
  • An accessibility feedback notice shall be displayed prominently on the homepage.

The main takeaway here is to 1) have a policy and 2) have a link to that policy (or a statement summarizing that policy) prominently displayed from the footer of your website.  Also, it’s important to provide multiple ways to receive feedback.

Note that the DOJ’s accessibility page only has one way, email.

Proactive Steps

  • An audit shall be conducted to determine next steps to achieve conformance with WCAG 2.0 AA.
  • Automated accessibility tests shall be conducted at least once every 3-6 months.
  • An independent Website Accessibility Consultant shall be retained to 1) advise on how to conform assets to WCAG 2.0 AA and 2) establish criteria for selecting testers with disabilities and reviewing the results of the tests.
  • The consultant shall conduct an annual evaluation that describes whether assets are in conformance, or any recurring, frequent, or significant deviations from bug fix priority policies, and make recommendations to improve accessibility of assets.
  • User testing shall be performed with 1) individuals who are blind or have low vision, 2) individuals who are deaf or hard of hearing, and 3) individuals who have physical disabilities affecting manual dexterity (such as those limiting the ability to use a mouse). Testing shall include the usability of the pages that are essential to the use assets by customers and the public, such as the user account, log-in, ability to select items and place them in the virtual shopping cart, check out and pay for items in the virtual shopping cart, and schedule delivery or pick-up.
  • Auxiliary aids and services shall be provided to achieve effective communication.

The last section of bullets is designated for making sure your digital assets do indeed become more accessible.  The key here is to make your website, app, etc., accessible and then make sure you maintain that accessibility.

Next Steps for Organizations

Of course, not all of these bullet points are applicable for all entities.

For example, small businesses that revolve around a website owned and operated by a sole proprietor won’t have a department to prioritize bug fixes.

And it’s not like all bullet points are mandatory.

It’s clear that the logic behind all of the items above is to drive and ensure accessibility, not necessarily the items themselves.

The reason there are so many requirements is that these requirements often directly lead to accessible digital experiences, especially in enterprise or large companies.

As for your organization’s immediate next steps, per the DOJ’s enforcement actions, I recommend that organizations:

  1. Adopt a policy and publish a link to that policy or a statement of that policy on your website.
  2. Conduct an audit or evaluation of your website, app, etc. using the WCAG 2.1 AA standard.
  3. Undergo remediation to address any issues found in the audit.
  4. Continue taking action to make your digital assets and operations more accessible.

Post by Kris Rivenburgh, eA’s Chief Accessibility & Legal Officer.