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Federal Web Accessibility Focus Has Private Sector on Notice (1)

Dec. 13, 2022, 10:15 AMUpdated: Dec. 15, 2022, 10:23 PM

Federal agencies, as well as the private sector, are facing pressure due to a growing focus on web accessibility by the Department of Justice, which recently sought to increase its own online user-friendliness with a makeover of its ADA.gov website.

DOJ said it would make the site more “user-centered” by incorporating easier to understand language, among other upgrades. The website itself offers information to employers and employees on the rights of disabled people in the workplace and in public spaces.

The update marks the latest move from the federal government indicating that it plans to increase focus on compliance with federal accessibility laws in the digital world, an issue that’s gained new attention in the wake of the rise of remote work during the Covid-19 pandemic. Widespread telework arrangements revealed some key deficiencies in website and internet accessibility for workers with disabilities, a “digital divide” that has led to employment gaps and other negative outcomes.

“The real deterrent isn’t just a building without a wheelchair ramp anymore, it’s software,” said Cat Noone Stark, CEO of accessible software start-up Stark.

The DOJ in March issued guidance on accessibility, establishing the Biden administration’s stance that Title III of the Americans with Disabilities Act applies to websites. It clarified that it interprets “places of public accommodation” to include websites.

The department also indicated in its Unified Agenda for Spring 2022 that it plans to issue a rulemaking on web accessibility as it relates to Title II of the ADA, which pertains directly to state and local governments’ digital presences.

Government Standards

The new ADA.gov site was designed to be easier to scan and navigate using a screen-reader or other accessibility tools. It was also updated to include plain language geared toward the average reader, not just companies wanting to learn about compliance.

Many public-facing government websites don’t meet the mark for accessibility, according to a 2021 report from non profit Information Technology and Innovation Foundation.

The report found that 30% of homepages did not pass an automated accessibility test, and 48% failed on at least one of their three most popular pages. Websites for agencies like the National Weather Service and the Department of Housing and Urban Development performed poorly on that test, which measured how navigable the sites were to people who cannot see and hear content or use a keyboard and mouse.

“The government should be practicing what it preaches,” Noone said of the accessibility issues.

In addition to the ADA’s accessibility requirements, the DOJ also enforces Section 508 of the Rehabilitation Act, which requires the federal government to procure accessible technology across its branches and agencies. Another provision, Section 504, requires that federal agencies and contractors ensure that their programs and services are accessible to people with disabilities.

Members of Congress have stepped in to highlight the issue, including requests to get the Department of Veterans Affairs to make its web resources more accessible, and to obtain accessibility compliance data from agencies. Sen. Bob Casey (D-Pa.) held a Senate committee hearing in July on accessibility issues.

“In a world that is already becoming increasingly digital, the Covid-19 pandemic has accelerated a long-term shift of delivering government services using virtual front doors instead of physical ones,” Casey said in a statement on the hearing."Unfortunately, over the years, the government has not prioritized ensuring that those front doors are accessible to everyone, especially those with disabilities.”

In response to an inquiry from Casey’s office, the DOJ said that it would resume audits of how federal agencies are performing on digital accessibility obligations under Section 508. The section requires the DOJ to publish a biennial report on the federal government’s compliance with accessibility standards, but it has not done so since 2012.

Ken Nakata, a principal at Converge Accessibility, a consultancy that helps clients with web accessibility, said Section 504 was put in place in part to push the private sector, through federal contractors, to create accessible products.

“If the federal government is required to look at that while they’re buying it, it would encourage companies to create more and more accessible products so that way they can win those contracts,” said Nakata, a former DOJ attorney.

The federal government budgeted over $58 billion for information technology in 2022 alone.

Federal contractors like Microsoft Corp., which collects billions in government contracts, have recently touted upgrades to make their products and services more user-friendly for people with disabilities.

‘Place of Public Accommodation’

For private companies, compliance with accessibility standards is complicated by the fact that federal courts have issued differing rulings on whether websites and other digital spaces are considered “places of public accommodation” under the ADA. Many circuit courts have not weighed in on the question at all.

Recently in Martinez v. Gutsy LLC, a judge in the US District Court for the Eastern District of New York allowed a blind man suing a probiotic beverage vendor to bring claims under Title III of the ADA. The plaintiff, Pedro Martinez, sued Gutsy because he said the website’s interface made it nearly impossible to complete a transaction as a blind person using screen-reading software.

“As an ever-greater proportion of the activities of everyday life and its myriad commercial transactions begin to take place online, a reading of the statute that limits its effect to entities transacting commerce in-person becomes one that renders the statute increasingly meaningless,” Judge Nicholas G. Garaufis wrote in the Nov. 29 opinion.

Sen. Tammy Duckworth (D-Ill.) and Rep. John P. Sarbanes (D-Md.) introduced the Websites and Software Applications Accessibility Act in September, which would direct the DOJ and US Equal Employment Opportunity Commission to create an enforceable standard for web accessibility in the private sector.

Beyond the broad guidance found in the ADA, there are currently no specific federally-issued technical accessibility standards for private companies’ websites and applications.

Companies who want to comply with accessibility standards aren’t sure which rules to hold themselves to, according to Angela Matney, counsel at Reed Smith LLP.

The DOJ has indicated through enforcement actions that the standard they’re generally looking to is the Web Content Accessibility Guidelines 2.1 AA; Version 2.0 AA, which is the standard the government looks to when complying with Section 508, Matney said.

“Clarity from the DOJ would be appreciated by the business community and people with disabilities as well,” she said.

(Revised to clarify range of court rulings around ADA's Title III and add context about Martinez case. Story was originally published on December 13.)

To contact the reporter on this story: J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com