Ed Zwilling July 29, 2016
Currently there are no rules or regulations from the Department of Justice (DOJ) to give guidance to public accommodations or public entities as to what is required for a website to be considered accessible. In fact, DOJ is still accepting comments through August 8, 2016 in connection with proposed rulemaking in this regard that is not anticipated until 2018. Does this mean that businesses get a pass until then? Not necessarily. There has already been some landmark litigation in this arena as well as a number of DOJ administrative actions that provide guidance to what the law is currently, in the absence of the forthcoming regulations.
As far as litigation is concerned, the 9th Circuit has already made some law in this area in National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006). In Target, plaintiffs with visual impairments claimed target.com was not accessible. In determining this case, the 9th Circuit did not hold that a website was a public accommodation in its own right (though this may indeed be the position of the DOJ), but rather held there must be a nexus between the services available on the website and the physical brick and mortar store that qualifies as a public accommodation. In other words, there must be a certain amount of integration between the website and the brick and mortar store such that the barriers to access of the website impede the full and equal access to the physical store(s).
Subsequently, DOJ has entered into settlement agreements on numerous similar complaints and has given insight as to what their likely regulations will be once released in 2018. For the time being, it appears that DOJ is favoring the Web Content Accessibility Guidelines 2.0 (WCAG 2.0) as per its agreements with H&R Block in 2014 and Carnival Cruise lines in 2015, concerning the accessibility of their websites.
WCAG 2.0 requirements are freely available at www.w3.org. In summary they require that webpages be fully perceivable, understandable and operable by users so that content can be more easily seen and heard, without content likely to cause seizures, and in a manner compatible with assistive technologies.
In practice, some examples of what this can entail are:
1. Every non-text element should have a text equivalent;
2. Color should not be the sole means of conveying information;
3. Scripting languages used to display content or to create interfaces should be identifiable by text;
4. If the content has a time limit, the user is able to adjust that time limit;
5. Instructions should be provided for required user input;
More and more often, business is conducted electronically to the exclusion of face to face transactions. For example, many banks are beginning to close drive-through windows in light of the prevalence of electronic banking and as a method of reducing overhead by employing fewer tellers. The accessibility of web content, therefore, is paramount to continuing to provide equal access to people with disabilities.