On December 26, 2017 the US Department of Justice officially withdrew the proposed Americans with Disabilities Act (ADA) rules for website accessibility. The question we’re being asked at WeCo by many of our clients since then is: does this mean we don’t have to make our website and software accessible? That’s an important question. It’s one that we would like to break down for you, both from our standpoint as professionals who specialize in digital accessibility, but also as a group of people who live with disabilities everyday.
First, let’s look at to whom accessibility laws for websites and software apply:
- The Rehabilitation Act of 1973/Section 508 applies to federal government and those who do business with them. This is the law that states that the federal government must make their digital information accessible to all members of the public who live with disabilities. The drill down on this law goes beyond just government entities. For instance, if you want to build something to sell it to the government, like a software program or website, you have to build it accessibly. Section 508 also applies to organizations which receive federal dollars. So, if you are a nonprofit organization that is dependent upon a state or federal grant, you are likely to fall under Section 508. (Responsibility follows money in most cases. Having gone through two federal audits as a state level federal program coordinator, I witnessed this.)TAKE AWAY: If your organization is part of the federal government, or an entity that receives federal funds OR if you build things that the federal government purchases, chances are that your digital goods will still need to be accessible to people living with disabilities.
- The Americans with Disabilities Act applies to all of us. Regardless of the Title you are referencing, the ADA applies to anyone who is opening up shop, providing services or promoting something to the general public. Many people don’t realize that the ADA is a civil right’s style law. It’s designed to make certain that all American citizens have equal access to anything that is made available to the general public. This means that if you have a store with steps, you’re going to install a ramp or elevator to ensure that customers who use wheel chairs or walkers can enter it. The same for nonprofit organizations, like churches and clubs. In the past, this has applied to websites too.TAKE AWAY: The withdrawal of the ADA website rules might lead one to assume that websites and software no longer need to be accessible to people living with disabilities, unless they are tied to government. However, it’s not quite that simple.To help explain this, we’d like to offer some thoughts by those of us who live with disabilities, and also work with digital accessibility, here at WeCo. We are also going to add some information from legal expert, and attorney, Lainey Feingold, with excerpts from her recent article on the subject, “No ADA Web Accessibility Regs? No Excuses.”
Where There’s a Will to Confront Inaccessibility, There’s a Way
Back in 2008, when I began to work with community disability advocates on the Minnesota Department of Transportation’s ADA Transition Plan, I learned quickly that I was dealing with some of the most resilient, intelligent and persistent individuals I had ever met. Roadblocks meant nothing to them–which was part of why I wanted to work with them. So, if you do something like throw the ADA web rules out with the proverbial legal bathwater, trust me, the people who care about this are pretty used to facing this type of thing. During the MnDOT project I watched with awe as they pulled plans X, Y and Z out of their back pockets, fully formed and carefully contemplated.
At WeCo, we have witnessed the same phenomenon, even prior to the ADA web rules release being delayed. Website complaints were, and still are, being routed to different departments in government, which, by law, are obligated to follow up on them. Our company has personally been involved with helping a number of banks and schools who have been investigated by the Federal Office of Civil Rights. But this is just one example. WeCo has also worked extensively with airlines in making their websites and online ticketing and check-in mechanisms, accessible according to separate laws released by the US Department of Transportation.
As we stated above, Section 508 is still a huge factor for organizations well beyond just government entities. Lainey Feingold reminds us that there are state laws still in force that govern website accessibility too. “Many states have laws requiring web access. California passed a new one this past Fall requiring state agencies to post an accessibility compliance statement on their websites by January 2019.”
Realizing how truly little the ADA withdrawal impacts where digital accessibility is going legally, is pretty fascinating and also encouraging to those of us who live with disabilities. In my mind, the US legal system truly does “have our backs” in ways we didn’t consider before.
The Courts Aren’t Done with the ADA
In a recent blog post, Lainey Feingold outlines how courts continue to rule in favor of website accessibility under the ADA. The US court system has been developing a long and rich legal precedence of ruling in favor of web accessibility, as a basic aspect of human life that we all have a right to enjoy, since the days of Target, Incorporated and Netflix landmark rulings for website and streaming video access. That trend continues.
The words of a federal judge sums this up well (excerpt from Ms. Feingold’s blog): “In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA’” in that it would prevent “‘individuals with disabilities [from] fully enjoy[ing] the goods, services, privileges and advantages, available indiscriminately to other members of the general public.”
Putting the Genie Back in the Bottle: Taking Back Human Rights isn’t Good PR
Existing laws and court precedence aside, it’s really hard to take away someone’s human rights. Has it been done? Of course. We could site all kinds of ugly historic precedence to support that. However, do YOU/YOUR COMPANY want to be the ones to do it? How good would this be for your bottom line: placing a disclaimer on your website that says, “Due to the withdrawal of the ADA web rules, we are no longer making our website accessible to customers who live with disabilities” ?
Our point exactly.
Besides, your competitors are already working on ways to digitally serve a growing aging population in the US. This group has already become the largest minority group in the nation, and worldwide: people living with disabilities.
In so many respects, the accessibility train has already left the station. Those of us who wish to find ourselves on the right side of history are finding our seats.