In the quiet hours the day after Christmas 2017, The Justice department officially withdrew the two Advance Notices of Proposed Rulemaking pertaining to WCAG and website accessibility. This surprised very few people within the accessibility community, but is nonetheless an unsettling turn of events in the fight for website accessibility. While the fight for an equal website experience rages on, it’s important to understand where the government stands on this issue so that you can plan your own business’ website with this in mind.
The Website Accessibility Debate
The Department of Justice (DOJ) argues that they are still evaluating it, but it’s very likely that the Department of Justice has left all decision-making on website accessibility for the next White House administration. They base their ruling not by saying they are considering whether WCAG (Web Content Accessibility Guidelines) is the best way to ensure website accessibility, but whether or not regulations are even necessary:
“The Department is evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate. Such an evaluation will be informed by additional review of data and further analysis. The Department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”¹
Furthermore, they are trying to ’devalue’ what has already been said on the subject from the DOJ:
Such ANPRMs had no force or effect of law, and no party should rely upon them as presenting the Department of Justice's position on these issues.¹
The law isn’t just set by regulations and legislation; it’s also set by precedent. Precedent is ‘a legal case that establishes a principle or rule’. This rule is then used in further, similar cases. The Department of Justice has already helped set several website accessibility precedents including:
Predatory ADA Lawsuits Continue
These cases have been and continue to be cited in lawsuits and decisions being made in courts across the U.S. The Department of Justice’s recent announcement unfortunately does nothing to change the precedent. While they might have intended to take some wind out of the sails of the fight for website accessibility, instead, they might have created a brewing storm. For smaller businesses (defined as too small to have a lawyer on retainer, but big enough to have standing assets), this unfortunately does not prevent the predatory ADA law firms from continue filing accessibility violation lawsuits. In fact, these law firms will likely be emboldened by recent DOJ announcement. Here’s why:
Any chance of getting a decision, modulation or other action in a business’ favor by the Department of Justice (such as grandfathering content, setting an official date to be WCAG 2.0 Conformant, or exempting third party content) won’t happen now.
It’s up to the individual judge to decide a case now. Though that may seem like a favor to businesses, the ADA trolls know what number is below a business’s threshold to go to court and ask you for that much. Legal uncertainty raises, now lowers, that number for you.
It’s much harder for businesses to trust that ‘this is the law’ and have a real target for compliance. Even businesses that have implemented WCAG 2.0 level AA are receiving threatening letters.
Build or Retrofit Your Website for ADA Conformance
So, what can you do? The best recourse is still to build a WCAG 2.0 AA conformant website. There won’t be a new standard implemented in the near future (besides upgrades to 2.1, which should not frighten you). An ADA conformant website will better serve your customers that have disabilities. It will help defend you (though not necessarily prevent) against legal action. And, if you find the right team to help you, you will understand what your false positives and third party issues are, as well as how to maintain your website and above all, be an advocate for accessibility.
As troubling, confusing and downright infuriating as all this can be, in the end, it’s about knocking down barriers and making an internet that works for all, especially the people it could serve the most. If you need help with next steps to make our website accessible, contact ZAG Interactive.