Despite No ADA Update, the DOJ Confirms Their Stance That the Law Extends to Captioning

October 11, 2018 BY ELISA EDELBERG

The Americans with Disabilities Act (ADA) requires that “auxiliary aids” be made available to anyone with a disability. While the ADA does not specifically address online video (as it was written in 1990, before the Internet was as extensive as it is today) precedent has been set that in the case of d/Deaf and hard of hearing individuals, providing “auxiliary aids” means providing closed captioning for videos.

You don’t need me to tell you that a whole lot has changed since the ‘90s. Web and video are a completely different animal than they were 30 years ago, and the ADA is long overdue for revision which explicitly requires captions as a requirement. Unfortunately, according to a recent letter from the Department of Justice (DOJ), captioning – which is not written into the ADA – will not be anytime soon. Don’t fret, though! Although the DOJ is not updating the ADA at this time, they confirm that they will take the same stance as has been taken that the law extends to captioning.

Read more about the June, 2018 letter to DOJThe Letter

On June 20, 2018 Ted Budd, along with a bipartisan assembly of 103 members of the House of Representatives, wrote a letter to Attorney General Jeff Sessions in response to the DOJ withdrawing from rulemaking on website accessibility for public accommodations. The letter encourage the DOJ to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in absence of clear statutory authority and a final rule establishing website accessibility standards.”

The Response

Several months later, on September 25, the DOJ responded that at this time the DOJ is not going to issue any new regulations about web accessibility and the ADA. The response affirms that the websites of public accommodations must be accessible; albeit, not necessarily to the standards of WCAG II, Level AA

icon of a piece of paper and one paper in an envelope

The DOJ’s letter does however offer a reminder that “the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.”

They continue on to say, “Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective

communication.”

"The Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements."

What This Means for Web A11y

Whether the laws explicitly acknowledge it or not, video has become an integral part of our society in 2018, and making it accessible to everyone only seems natural. 78% of people are watching videos online every week. By 2019, 80% of the world’s internet traffic will be video.

When it comes to hearing loss, more than 360 million people (over 5% of the world’s population) have disabling hearing loss. 60% of those with hearing loss are either in the workforce or in an educational setting. Captions help these individuals tremendously, and in addition help with comprehension, clarification, concentration, and engagement.

Given the immense benefits of captioning, most digital accessibility advocates and professionals would like to see more concrete regulations on such a critical topic. Despite this, there is an acknowledged sense of relief that the ADA will not be changed at this time, as not all changes would necessarily lead to improvements. For now, the ADA will stay as is.

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