A brief overview of accessibility laws
February 18, 2021 - 11 minutes read
As more countries enact legislation mandating digital accessibility compliance, it’s important to understand how these laws apply to commercial websites and mobile apps. The best way to ensure compliance with the law is to do what most governments do — follow the WCAG 2.1 guidelines.
The information provided in this article does not constitute legal advice. All information contained in this article is for informational purposes only.
Accessibility laws and regulations that prohibit discrimination on the basis of a disability (visual, auditory, physical, speech, cognitive, or neurological) have been enforced for decades in the U.S., Germany and Canada, as well as other countries in Europe and Asia. Unfortunately, laws prohibiting discrimination on the basis of disability have not kept pace with technological advances in communication.
To remedy this gap, countries amended current laws or drafted new laws to ensure the accessibility of new devices and technologies, namely the Web and mobile applications.
Although such laws detail what technologies must be made accessible, they do not detail specific standards to designate compliance. Such uncertainty has led to a spike of class action lawsuits in the U.S. In 2010, the Department of Justice stated it would issue standards against which compliance could be judged, but they reversed their decision in 2017, the same year Domino’s Pizza lost a case because their mobile ordering app did not accommodate the visually impaired.
With no established standards regarding web accessibility compliance, the best strategy for avoiding a lawsuit is to follow the Web Content Accessibility Guidelines (WCAG) guidelines when designing and developing your websites and mobile apps. These guidelines have, in fact, become the de facto standards, demonstrated by the EU, who has formally adopted the WCAG guidelines as their standard.
If you’re in the process of making your websites and mobile applications accessible, there are steps you can take to help mitigate a possible lawsuit.
To start with, hire a third party to support and document web accessibility efforts and status, particularly if you’re in the process of fixing your web properties and mobile apps. The best position to be in when facing a lawsuit is to already have your transgressions documented and more importantly, an action plan on how you are actively fixing them.
Create an internal and public-facing web accessibility policy and statement. Post them on your site, and make them easy to find. The policy and statement are key items that the plaintiff and court may take into account to determine a defendant’s true and honest intentions to address accessibility.
Remediate the website and fix the issues affecting screen-reader users. According to WHO, there are 285 million people worldwide who, due to some disability (i.e. they are suffering with low vision), cannot read all content on a website. 39 million of those people are blind and cannot access any of the content via sight. And most lawsuits are filed by blind users. Making your site screen-reader ready will not only shield your company against a class action lawsuit, but will also make your content accessible to a much wider audience.
Test, test, test. Regularly test your content with screen readers. In light of most lawsuits being filed by blind users, make this a priority, incorporating the process into your current quality assurance and website testing practices.
Hire a third party to audit your websites and mobile applications. Perform such an audit annually.
Make accessibility part of your design and development process and ensure team members have the training and tools they need to implement accessible content.
U.S. Laws, Regulations
Americans with Disabilities Act (ADA) of 1990
The ADA is a civil rights law that prohibits discrimination based on disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications.
Title III is the section of the ADA that’s most applicable to companies doing business online or via mobile apps. Title III dictates that no individual can be discriminated against on the basis of disability with regard to public accommodations.
Typically one thinks of “public accommodations” as physical places of business, i.e. hotels, restaurants, theaters. However, in the 2017 case of Gil v. Winn-Dixie, the U.S. Department of Justice (DOJ) sided with the plaintiff, stating that Winn-Dixie’s website is an extension of their physical stores and therefore must comply with ADA Title III. Nevertheless, the DOJ did not define the standards to determine whether a website is accessible.
As a result of the vagueness of the DOJ ruling led to a deluge of legal action as opportunistic plaintiffs brought cases against major corporations such as Domino’s and Apple. Between 2017 and 2018, there was an 181% increase in class action lawsuits filed for ADA violations.
As the DOJ has never clarified the standards by which a website’s accessibility will be determined when brought before the court, the best course of action is to make your website or mobile app accessible from the start.
Rehabilitation Act of 1973, 29 U.S.C. § 701 –508
The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors.
In 1998, the US Congress amended the Rehabilitation Act to require the federal government and any departments, programs, organizations, or businesses that receive funding or contracts from the federal government, including schools, to be fully accessible.
What this boils down to is if your organization works with the Federal government in any capacity, you must make your web properties and mobile apps accessible.
21st Century Communications and Video Accessibility Act of 2010 (CVAA)
The Twenty-First Century Communications and Video Accessibility Act (CVAA) was signed into law in 2010 and amended the Communications Act of 1934 to ensure that people with disabilities would have equal access to modern communication technologies.
Next to the ADA, the CVAA is the most paramount piece of legislation for persons with hearing, vision, mobility or combined impairments since it modernized a near century-old law to keep pace with rapidly changing technology.
Title I of the act covers communications access. Whereas section 508 of the Rehabilitation Act requires online and mobile content to be accessible, the CVAA requires that the means by which a user accesses the content, e.g. a web browser interface, also be accessible.
Title II of the act covers video programming and user interfaces for video programming. This includes making video content accessible through the use of video descriptions that can be read aloud and closed captioning, as well as accessible interfaces for starting, stopping and pausing video.
Similar to the other disability laws, the CVAA opens the door wider for legal actions due to the vagueness of standards that determine compliance.
Air Carrier Access Act (ACAA)
The Air Carrier Access Act (ACAA) was passed by Congress in 1986 with the purpose of developing regulations that guaranteed people with disabilities a consistent and nondiscriminatory experience when traveling by air.
In 1990, the U.S. Department of Transportation published the regulations which were amended in 2013 to address the accessibility of carrier websites and ticket kiosks.
The amendment applies to:
- All domestic and foreign airlines operating at least one airplane with a seating capacity of more than 60 passengers, serving U.S. passengers.
- Domestic and foreign airlines that have more than 10,000 passengers.
- Ticket Agents that are not small businesses (including travel websites, such as Kayak.com, cheaptickets.com, airlineconsolidator.com, cheapoair.com, orbitz.com).
The amendment established a two-phase compliance schedule where core functions, such as booking, checking in, accessing flight schedules, had to meet WCAG 2.0 Level A and AA compliance by June 30, 2016.
The deadline for phase-two compliance for ”non-core” components, such as a carrier’s website, was December 2016.
2010 ADA Standards for Accessible Design
In 2010, the Department of Justice published revised regulations for Titles II (State and local governments) and III (public accomodations) of the Americans with Disabilities Act of 1990.
These regulations adopted revised, enforceable accessibility standards called the 2010 ADA Standards for Accessible Design. The standards set minimum requirements that government facilities and commercial businesses must meet in order to be accessible to and usable by individuals with disabilities.
Section 707 covers technologies that were not included in section 508 of the ADA, such as automatic teller machines (ATMs), and establishes requirements for accessible inputs and outputs (e.g. audible guidance, braille receipts.)
U.S. State Laws
In California disabilities are broadly defined as conditions that limit a major life activity, including physical and mental disabilities, as well as medical conditions such as cancer or HIV/AIDS. California definitions and protections can be broader than protections under federal law.
California’s Unruh Civil Rights Act, the California Disabled Persons Act (CDPA) and the California Consumer Privacy Act (CCPA) ban discrimination based on sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.
The Unruh Act applies to all businesses in California, and any business that violates the Federal Americans with Disabilities Act automatically is in violation of the Unruh act. As a result, a plaintiff in California can also sue for damages at the Federal level. Plaintiffs could therefore sue for three times the damages (when coupled with the CDPA.)
Because California permits state citizens to simultaneously sue in state and federal courts for triple the damages, California has accounted for 42% of ADA cases nationwide. The state urges plaintiffs’ attorneys to limit their cases to state court, and California grants businesses a 30-60 day window to correct the problem and reduce the amount of damages plaintiffs can seek.
The California Consumer Privacy Act has a specific requirement that all privacy notices be accessible and have alternate formats available.
In 2019, a committee of state legislators met to discuss developing a legal standard for web accessibility compliance. In 2018, two-thirds of all federal ADA complaints originated from New York, where plaintiffs’ attorneys have exploited loopholes in state and federal laws. Issuing legal standards may close loopholes and help stem the flood of lawsuits.
European Union Laws
EU Web Accessibility Directive of 2016
The EU Web Accessibility Directive was derived from an ongoing effort to uniformly address accessibility issues across the European Union. Starting in the early 2000s, the Directive carried over into initiatives such as 2010’s European Disability Strategy, the overall aim of which is “to empower people with disabilities so that they can enjoy their full rights, and benefit fully from participating in society and in the European economy.”
With the passage of the Web Accessibility Directive, all public sector websites and applications in EU member states are required to implement, enforce, and maintain a uniform set of accessibility standards. Sites and apps that fail to comply with the directive risk fines and other legal penalties, along with the negative publicity and consumer backlash that comes with operating an exclusionary site.
Although the Web Accessibility Directive only applies to public sector websites and apps, organizations that contract with or provide products or services such as software to governmental sites must be accessible.
Similar to U.S. law, the EU directive does not put forth any standards or rules that websites and mobile apps need to meet to stay in compliance. Instead, the EU directive refers readers to European standard EN 301 549 “Accessibility requirements for ICT products and services,” which employs Web Content Accessibility Guidelines (WCAG) 2.1 as its technical standard.
The European Accessibility Act (EAA) of 2019
The European Accessibility Act (EAA) of 2019 aims to improve the functioning of Europe’s internal market for accessible products and services while removing barriers created by different national rules.
The act applies to all the Member States in the EU, as an effort to create a more unified accessibility policy. States have until 2022 to introduce the provision into their national laws and until 2025 to apply them. The idea is to encourage companies to integrate accessibility into their development processes – not as an afterthought.
The Act covers:
- Smartphones, tablets and computers
- Ticketing machines
- Televisions and TV programmes
- Banking and ATMs
- Online shopping websites and mobile apps
However, the directive has several surprising loopholes. Health care services, education, transportation, housing and household appliances are not covered under the Act. And like its U.S. counterpart, the EU Act allows exemptions for undue financial burden, as well as “microenterprises.”
Also, the EAA defines what needs to be made accessible, but does not state detailed technical solutions for how products and services should be made accessible.
This is a table that has other countries’ laws and regulations.