Legal Corner: Website Accessibility

The Americans with Disabilities Act ("ADA") was passed in 1990 (amended in 2008), years before internet use became commonplace. Many understood the law at the time to apply to physical barriers, but we now live in a world that relies on digital access. Most cities and towns are familiar with the ADA and understand their obligations to provide equal access to their programs, services or activities to individuals with disabilities for transportation, voting, etc. But recent lawsuits around the nation have alleged that website accessibility is subject to the ADA, and while many of these lawsuits have involved private businesses, it is important to understand the law and how it applies to cities and towns.

Website Accessibility

Accessing the web is an everyday occurrence for many people but can be a challenge for a person with a disability. For example, an individual with a visual impairment may require speech-recognition software or a screen reader to convert the website information into an audio format. A person with a physical limitation may need to utilize software to navigate a website without a tool such as a mouse. Or an individual with a hearing impairment may require closed captioning. These examples touch on only a few challenges for individuals with disabilities who want to access the internet.

Americans With Disabilities Act

Title II of the ADA prohibits discrimination against individuals with disabilities and states that a person with disabilities shall not be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any public entity. 42 U.S.C. § 12132. “Public entity” means any state or local government, any departments and agencies, and any other instrumentalities of the state or local government. 42 U.S.C. § 12131. Title II prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services of public entities, including those conducted by state legislatures and courts, town meetings, police and fire departments, motor vehicle licensing, and employment. See § 3:1.In general, Legal Almanac: The Americans With Disabilities Act § 3:1.

In addition to the ADA, any local government that is receiving federal funding may want to review Sections 504 and 508 of the Rehabilitation Act since it contains the same restrictions against discrimination as the ADA, and requires that information and communications technology be accessible to people with disabilities.

The Department of Justice (“DOJ”) is responsible for establishing regulations to implement the ADA, but as the internet age exploded specific accessibility guidelines have not been issued. In 2010, the DOJ initiated rulemaking procedures to update the law relating to websites, but this effort has been postponed and there is no timetable for the process to resume. Despite the lack of formal rules, the DOJ has initiated complaint-driven compliance reviews of municipalities and through settlement agreements, required implementation of Web Content Accessibility Guidelines ("WCAG"), which is a technical standard for making a website accessible for people with disabilities. These guidelines have also been used by courts to enforce ADA public accommodation requirements in lawsuits involving private businesses under Title III of the ADA, and were recently incorporated into a final rule under Section 508 of the Rehabilitation Act.

Website Accessibility Requirements & Tools

In addition to the WCAG, the ADA has issued the ADA Best Practices Tool Kit for State and Local Governmentss, which identifies common problems that appear in many websites. First, website design may have images without text, which prevents software from translating those images into audio or captions. Additionally, pdfs cannot always be accessed by screen readers or those who use text enlargement programs so text-based formats are preferred. Colors and font settings can sometimes obscure information for everyone, but particularly those who are visually impaired. Since there are varied settings that allow the person’s operating system to reconfigure those settings, the key is to allow the user to adjust those settings. Lastly, videos or other multimedia features should include descriptions so a person with a disability can understand the message. These are only a few of the most problematic issues faced by a person with a disability who is seeking information on the internet.

Many of these website changes require implementation by your IT department. You may also want to consider contacting disability groups that are willing to test your website, especially if you are revising your website or adding new features. The ADA lists a number of resources in its publication to assist with this process.

Since there are no federal rules from the DOJ, often we can look to state law to provide additional guidance. But in 2017, the Legislature enacted Senate Bill 1406 (Laws 2017, Ch. 175) exempting websites from the state’s requirements to provide public accommodation and services to individuals with disabilities. However, the State has a Website Accessibility Policy to reduce "the technical barriers to accessibility on Arizona Web sites for persons with disabilities." And the University of Arizona has a webpage that itemizes several IT Accessibility tools to help improve website access. These state guidelines along with the WCAG can provide cities and towns with a template for improving website accessibility for their communities.

Major modifications to your website may not be necessary as long as a person with a disability can obtain that same information in real-time that is available on the website. But this is more challenging than it seems. For example, if your city or town website provides forms online that are not accessible to a person with disabilities, how can the person access the same information after the close of business?

Your city or town may want to test your website and make some modifications to ensure that every person has equal access to the same information on your website.

Conclusion

As our population has become more dependent on the internet, there has been a lot of confusion over the years about whether the ADA applies to websites for state and local governments and businesses. Unfortunately, without specific guidance from the DOJ, litigation has remained as a primary source of guidance about how to provide an accessible website. While the law remains unsettled, the safest course of action is to determine whether your website is compliant with the WCAG and other best practices that improve website accessibility and make the necessary plans to implement measures to meet those requirements, especially if your city or town is considering revamping your website or adding new features to your existing website. If DOJ issues formal rules, it will likely require governments to comply with some form of website access and by taking these steps in the interim, your city or town may avoid costly compliance measures, and may be a model for other local governments that seek to improve website accessibility for all individuals.