2016 in Review: Web Accessibility Legal Trends and Case Updates
Updated: January 4, 2018
In late September we were very lucky to be joined by Lainey Feingold who presented on accessibility law trends and case updates from 2016.
Lainey is an internationally recognized disability rights lawyer and pioneer of the legal resolution strategy structured negotiation, which is the subject of her brand new book, Structured Negotiation: A Winning Alternative to Lawsuits, available through the American Bar Association.
Since so much was covered in the presentation, and so much is happening in the world of web accessibility law generally, we decided to outline main takeaways in this blog post to help make the legal year a bit more digestible to our readers.
The DOJ in 2016: A Champion of Civil Rights
The Americans with Disabilities Act (ADA) is a civil rights law.
When it was passed in 1990, the internet as we know it today did not exist, and legislators have been very slow to bring those regulations up to speed.
As a result, regulations ensuring that people with disabilities have equal access to the internet are essentially missing from the ADA’s language.
So, as Lainey points out, it is worth applauding the Department of Justice (DOJ) for being a true champion of civil rights by enforcing the ADA in such a way that does support equal access to the internet.
In 2016, the Department of Justice continued fighting for web accessibility by:
- Actively looking for barriers to accessibility on the web for disabled persons and taking legal action to remove those barriers
- Solidifying their position as experts in the ADA and saying that it does cover websites
- Recognizing and fighting for mobile accessibility
- Supporting the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA as the universal standard
The State of Accessibility Legislation in 2016: New Guidance is Coming
While 2016 has not yet seen any major updates to accessibility law, there are still big changes on the horizon.
Updates to ADA Title II Delayed but Still Coming, Title III Changes Coming in 2018
In 2010, the DOJ said they were going to update Title II of the ADA, clarifying its application to the internet presence of state and local governments. The update was submitted for official review in July 2014.
Unfortunately, on April 29th, 2016, in a frustrating blow to advocates everywhere, the DOJ scrapped the new regulations and said it was starting the process all over again.
However, in the same motion that the DOJ discarded the old update, they also issued a new Supplemental Advance Notice of Proposed Rulemaking (SANPRM) in order to solicit additional public comment on various issues to help the DOJ “shape and further its rulemaking efforts,” citing evolutions in the internet and assistive technologies. The deadline for public comment was October 7th, 2016, so assuming no further delays, Title II guidance will hopefully come sometime in 2017.
In 2013, the DOJ also announced it would discuss issuing new guidance for Title III, recognizing that accessibility for commercial entities is just as important. However, the same SANPRM that delayed Title II’s new rules pushed back Title III’s, as well.
Web accessibility guidelines for entities that operate web sites considered “places of public accommodation” under Title III are slated to come in 2018.
The Section 508 ICT Refresh
As mentioned in an earlier post, Section 508 of the Rehabilitation Act has undergone an information and communications technology (ICT) refresh which is slated go public this October.
The major changes will include new language that aligns the law closer to WCAG 2.0, which means more clarity as to what kind of new technologies are required to be accessible and how.
The ICT Refresh is currently being reviewed by the White House’s Office of Management and Budget (OMB) and is awaiting final approval.
As previously mentioned, revisions to the ADA seemed like they were on the way this year. The main reason the DOJ decided to start from scratch was because the new regulations did not get approval from the OMB. Hopefully, this will not be the case with the Section 508 ICT Refresh.
Do Regulations Even Matter at This Point? Yes, and No.
Case law, which is derived from court rulings, increasingly favors the rights of people with disabilities.
Before the NAD v. Netflix case it was assumed that Title III of ADA limited “places of public accommodation” to physical structures. As a result of the ruling, it is now widely known that ADA regulations can be applied to online businesses.
Lainey points out that even though some organizations claim they don’t know how the ADA applies to the internet because the language in the laws are not clear, the people in charge of writing the ADA are making it clear that the law does in fact cover web accessibility:
[Even] though they’re going through this whole regulatory process, they make it very clear that the Department has taken the position Title II covers internet web access.
They also said the Department believes that Level AA conformance of WCAG is the most appropriate standard. So I get frustrated when I hear, well, we don’t know what to do. There’s no regulations. We do know what to do. The Justice Department has said, the ADA covers web access for state and local government and Title III, and that WCAG AA is the appropriate standard.
So does it matter that we don’t have regulations? I say no, and I say yes. The ADA already covers digital access. That’s the takeaway. That’s the law in your back pocket. That’s a civil right. ADA’s a civil rights law. Justice Department says it covers digital.
On the other hand, we’re sick of excuses. There shouldn’t be any more excuses, and until we have regulations, there will probably continue to be excuses. So for that reason, I think it does matter, and it’s very frustrating that the process has taken this long.
Major Accessibility Cases in 2016
Any new developments in accessibility law cases are very exciting — partly because these cases can take a long time before a decision is reached so any news is exciting — but mainly because the rulings have major ramifications for so many individuals and organizations within the US.
The case law resulting from an accessibility case ruling is a sign of how courts are interpreting the law as it applies to new scenarios and technologies, usually foreshadowing how laws will be written in the future.
Below are some major accessibility cases and legal scenarios from the year that Lainey has been following:
The DOJ’s Letter to UC Berkeley
One of the more prominent web accessibility stories from 2016 is the ongoing DOJ investigation into inaccessible tech at the University California, Berkeley.
In the letter sent to the university, the DOJ claims that a great deal of educational resources at the university — namely their iTunes channel, YouTube channel, and the massive open online courses of the university — are inaccessible to people with hearing, vision, and motor disabilities.
Because the school receives federal funding, the DOJ has the right to investigate under Title II of the ADA.
In Lainey’s view, this case is peculiar because the investigation is underway even though the university has an excellent accessibility department. The DOJ discovered that many of the violations found in the investigation resulted from the allegation that the university’s accessibility policy was not being properly enforced.
In an effort to prevent litigation, the DOJ wants to try collaborating with the school to find solutions to their inaccessible web resources. In response, the school put a statement on their website claiming they also looked forward to collaborating with the DOJ, but they also implied that failure to reach an agreement could result in them removing their public-facing online courses.
UC Berkeley has a successful history of cooperating with outside groups to correct inaccessibility issues, so hopefully they can do the same with the DOJ this time.
NAD v. MIT/Harvard
As many in the world of accessibility already know, students represented by the National Association of the Deaf (NAD) are currently suing MIT and Harvard University over inaccessible educational video content available to the public via massive open online course (MOOC) initiatives operated by the two academic giants.
The plaintiff argues that the lack of accurate and comprehensive captioning across both platforms violates both the ADA and the Rehabilitation Act. A magistrate judge and the DOJ both support the position of the NAD. Lainey is pretty sure the law is on the side of the NAD in this major accessibility case, stating:
The outcome of this case will essentially determine the degree to which video captioning will be required in higher education and in the world of free, internet-only education. A ruling in favor of the NAD would mean that universities across the US will need to reevaluate whether all of their educational video content is properly captioned.
Other Cases from 2016
Here’s a short list of some cases and legal developments that were mentioned in the webinar:
- The American Council of the Blind and other groups are fighting for alternative, aural prescription labels
- Bank of America and San Francisco Credit Union are working on making financial information more accessible to blind people
- The US Department of Labor started PEATWorks.org, making online job applications more accessible
- The lawsuit over Sweetgreen’s inaccessible website
- The Netflix audio description settlement, allowing blind users to enjoy the company’s streaming and DVD video content
5 Publishing Firms Doing Captioning Right
In the world of publishing, people are going digital. As a result, this outburst of digital content has created greater access to educational materials for a wider range of people. While digital content is easier to disseminate, it can also be made…
Q&A: McGraw-Hill’s Roadmap Towards Greater Accessibility
Through their Roadmap to Accessibility, McGraw-Hill is steadily incorporating its accessibility initiatives into their products. As a result, McGraw-Hill is becoming a leader in accessible publishing. While they are the first to admit that it’s not always a clear road ahead, McGraw-Hill’s…
4 Reasons You Need Caption Encoding
What is it? Caption encoding is when captions are embedded into the video and presented as a single asset. Typically, captions are added onto a video as a “sidecar file,” but this method is intended for online video where one can upload…