Trump Moved Web Accessibility Regulation to “Inactive List”
As you may recall, in April, we published an article on Website Accessibility to shine a light on what digital businesses should do about the fast-approaching deadline for complying with Web Content Accessibility Guidelines (WCAG) 2.0 that covers a wide range of recommendations for making Web content more accessible. Since then, we have seen some positive digital accessibility litigations, however, the Trump administration has recently placed the regulation into a new and undefined status called “Inactive Regulations”.
In the U.S, one out of every five adults has a disability, according to the Centers for Disease Control and Prevention. Some 15 percent of the world's population, an estimated 1 billion people, have disabilities. To address this issue, nearly a decade ago, the regulations (Title II and III of the Americans with Disabilities Act (ADA)) were introduced in an effort to remove barriers to create an inclusive and accessible society for all, in both a real and virtual world as they prohibit discrimination on the basis of disability. The focus of the legislation requirements were initially on places of public accommodation, however, over time, the scope expanded from the physical aspects of accommodation into their digital presence, and that’s where things have gotten complicated as for any organization that receives federal funding or does business with the government, the act requires agencies to make their electronic and information technology accessible to people with disabilities by complying with the ADA Standards.
Given that the vast majority of web properties poorly address ADA Standards, the Department of Justice (DOJ), which issues those standards, delayed a plan to issue accessibility regulations for two more years until 2018. It would give a reasonable time frame to businesses in all industries, along with their engineers, website designers, and other IT professionals and vendors for compliance. According to the Los Angeles Times, millions of businesses with websites have the worst of both a real and virtual world: mandates without directions.
DOJ also made it clear that it considers a website “accessible” if it complies with the Level AA standards of the Web Content Accessibility Guidelines (WCAG) 2.0. Now, let’s look at whom WCAG 2.0 aims to make online content accessible to:
Deafness and loss of auditory capacity
Limited visual acuity and blindness
Cognitive medical conditions
Other types of disabilities which impede content consumption
The ADA Website Accessibility Regulations Are On the Inactive List
Finally, under the Obama Administration, the Department of Justice took the broader position, but it did not issue regulations providing specific guidance to businesses. Therefore, such regulations were expected from the Trump Administration. On July 20, 2017, Trump Administration’s first Unified Agenda was issued and it included some very noteworthy changes from the last such Agenda, issued by the Obama Administration.
First of all, for the first time, the Agenda divides all agency regulatory actions into three categories: active, long-term, or inactive. While the Agenda does not clearly define these terms, only the active and long-term matters seem to be expanded with a description and projected deadlines. The inactive matters, whereas, are displayed on a PDF document under a link called “2017 Inactive Actions”. The inactive list encompasses regulations that have not been formally withdrawn but have no known place in the agency’s planned rulemaking. The Agenda places the Department of Justice’s rulemakings under Titles II and III of the ADA for websites, medical equipment, and furniture of public accommodations and state and local governments on this 2017 Inactive Actions list, with no further information, meaning there will be no regulations about public accommodations or state and local government websites for the foreseeable future. In other words, the placement of the ADA website accessibility regulations on the inactive list means an absolute U-turn from past positions of the DOJ.
This shocking placement is part of the Administration’s greater effort to decrease the number of regulations in development. Therefore, the Administration advocated the following developments on the Agenda’s homepage:
Agencies withdrew 469 actions proposed in the Fall 2016 Agenda;
Agencies reconsidered 391 active actions by reclassifying them as long-term (282) and inactive (109), allowing for further careful review;
Economically significant regulations fell to 58, or about 50 percent less than Fall 2016;
For the first time, agencies will post and make public their list of "inactive" rules-providing notice to the public of regulations still being reviewed or considered.
However, the new placement seems to serve the goals of less burdensome regulation, yet it is expected to contribute to the heightening wave of website accessibility lawsuits. The DOJ adopting WCAG 2.0 AA as the standard for web accessibility regulations in 2018, on the other hand, could have put an end to the dubious regulations for website accessibility and diminished the complaints filed against non-compliant organizations and businesses.
Where Does This Leave Businesses?
Obviously, the uncertain legal landscape regulations will not only lead to more website accessibility lawsuits but also put Judges in a murky position as they are trying to plug the hole with a mélange of decisions that often conflict with one another. In the absence of website regulations, lawsuits and demand letters filed and sent on behalf of individuals with disabilities alleging that the websites of thousands of public accommodations are not accessible are already on the rise. According to court papers, in New York, for instance, 14 retailers include big names like Shake Shack, Nordstrom and Katz’s Delicatessen have been sued in the first 13 days of July.
Lawyer Jeffrey Gottlieb has filed at least 26 such cases over the past two months on behalf of two plaintiffs — Steven Matzura and Lawrence Young — who are suing Warby Parker, Stew Leonard’s, Sephora, Mac Cosmetics and others, according to New York Post. The majority of Gottlieb’s suits are against restaurants. He explains the main reason behind this: “Blind people have difficulty cooking so they eat a lot of prepared food. But they can’t read the menus online or even get addresses for the restaurants.”
Besides these organizations, other huge companies including, Hard Rock Café International, Bed Bath & Beyond Inc., DSW Inc., The Home Depot, Inc., Jos. A. Bank Clothiers, Inc., Forever 21 Inc., Tommy Hilfiger Licensing, LLC, J.C. Penney Company, KMART Holding Corp and many others have also faced legal action due to alleged ADA non-compliance. New York is not even the worst case in the big picture as California has a $1 billion problem with these lawsuits.
Notwithstanding its stalled regulations, Judges are generally siding with plaintiffs by forcing the business and organizations to make their sites ADA compliant. U.S. District Judge Robert Scola, for instance, has recently ruled that Winn-Dixie’s website was a “place of a public accommodation” under the ADA and issued injunctive relief and awarded attorneys’ fees. The injunctive relief included a requirement that Winn-Dixie would adopt and implement a website accessibility policy that ensures its website conforms to the WCAG 2.0 criteria and, further, that any third-party vendors who interact with the website also must conform to such criteria, according to the Bureau of Internet Accessibility’s website.
On a positive spin, JPMorgan Chase & Co is seeking to embed the awareness of creating a truly accessible and inclusive environment in its corporate culture. To that point, the bank launched its ADA Program to achieve the firm’s mission to be the bank of choice for people with disabilities by providing their customers with disabilities equal access to the firm’s U.S. products, services, and facilities.
Even though the regulations were issued nearly a decade ago, this area is still new to many people including Web designers. Whether the standard for web accessibility regulations is put on the Inactive Actions list or will be out in effect as of tomorrow, businesses and organizations should assess their websites to determine whether they meet WCAG 2.0 Level AA standards and comply with relevant privacy laws before they receive a demand letter or complaint.
Additionally, making your website accessible is beneficial not only for people with a variety of disabilities but also for protecting and enhancing your business. Usability and user experience are catalysts to a consumer’s decision journey. However, today, as many as half of the websites are nearly impossible for people with disabilities to browse. Considering the number of people with a disability or age-related limitation is expected to increase, the opportunity lies therein for businesses that aim at expanding their audience and reach.
For those who want to assess their website if it complies with the ADA Standards., you may get a free summary assessment of your website here.