Why Your Website Must Be Compliant | Fikra for Business Development

Why Your Website Must Be Compliant

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Website Accessibility & the Law: Why Your Website Must Be Compliant
Friday, January 24, 2020

In the U.S., apart from federal, state, and local government websites which must meet Section 508 regulations, there are no enforceable ADA legal standards to follow for website accessibility.

However, just because there is no straightforward set of legal requirements for website accessibility does not mean that your business will not be presented with a lawsuit.

This has understandably raised alarm. Most countries provide laws protecting the civil rights of disabled persons for homes, parks, businesses, and educational facilities. What is not universal is website accessibility.

The internet provides global access to information, stores, education, financial institutions, audio, and video, but often remains restricted or dependent on assistive devices for millions of people to gain unhindered access.

Fortunately, there are standards in place that unifies development and allows the world to use web-based solutions with universally accepted protocols.

We know these standards as the World Wide Web Consortium, or W3C. Accessibility guidelines are known as WCAG. As of 2018, we are at version 2.1. (Both WCAG and Section 508 guidelines were updated in 2018.) Research Your Country The weakness of website accessibility enforcement in the U.S.A. that encourages ADA lawsuits has not only driven up the number of lawsuits but has enabled some of them to reach beyond the States. It is important to understand the laws and recommendations for web accessibility for your own country.

Both the U.S. and the U.K. refer to non-government related websites as “public” and “public sector” entities, allowing the legal system to hear cases brought by persons with disabilities who find themselves unable to use a public-facing business website. In the U.S.A., this is referred to as the ADA Title III, Public Accommodations and Commercial Facilities. It has not been updated to include websites and online applications.

Europe updated its EU Web Accessibility Directive in September of 2018, making all public sector websites and applications in EU member states implement, enforce and maintain accessibility standards or risk fines and legal penalties. Of their recommendations, accessibility statements are one that is gaining in popularity for everyone wanting to show initiative. One popular guideline for businesses to use when deciding whether to develop accessible websites is that if there is a physical store that must legally meet accessibility requirements for public access, their website version should also do so. Navigating the History of Website Accessibility & the Law in the U.S. Even though there are accessibility standards and guidelines to follow, companies are not legally bound to apply them in the United States.

There is no official set of website accessibility standards or criteria set forth by the Department of Justice for businesses to legally comply with, other than Section 508 under Title II. So why are there so many lawsuits? On July 26, 1990, the late President George H.W. Bush signed into law the Americans with Disabilities Act (ADA), which is a civil rights law prohibiting discrimination on the basis of disability. Its purpose is to protect the rights of individuals with disabilities for employment, access to state and local government services, places of public accommodation, transportation, and more. On July 26, 1991, the DOJ issued its final rules for following Title II and Title III but neither addressed website accessibility. Title II of the ADA applies to state and local government entities. It protects individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by state and local government entities. What we refer to as Section 508 web accessibility falls under Title II.

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations. These are businesses that are generally open to the public and there are 12 categories, including schools, recreation, offices, and medical buildings. Your ecommerce website and public mobile applications fall under Title III. Section 508 & Title II In June 2003, in recognition of how the Internet was transforming interactions between the public and governmental entities, the DOJ published Accessibility of State and Local Government Websites to People with Disabilities, to provide state and local governments guidance on how to make their websites accessible and ensure that persons with disabilities have equal access to the services, programs, and activities that are provided through those websites.

Title III was not included with this update. The gap between government and public website accessibility began to confuse companies that conduct online business with the government and schools with websites, such as universities that accept federal financial aid. Website Accessibility Roller Coaster There have been attempts to add website accessibility enforcement support over the years. Each has been met with failure. ANPRM, NPRM & SANPRM On September 30, 2004, the DOJ began the process of updating the 1991 regulations based on the relevant parts of the ADA and Architectural Barriers Act Accessibility Guidelines by publishing an Advance Notice of Proposed Rulemaking (ANPRM) and inviting public comment. On June 17, 2008, the DOJ issued a Notice of Proposed Rulemaking to adopt the revised 2004 ADA/ABA Guidelines and revise Title II and Title III regulations. The 2008 NPRM addressed the issues raised in the public’s comments to the 2004 ANPRM and sought additional comments. Neither the 2004 ANPRM or 2008 NPRM included a proposal for web accessibility provisions despite public comments urging the DOJ to issue web accessibility regulations under the ADA. The ADA Amendments Act of 2008 went into effect on January 1, 2009. Among other things its purpose was to make updates to the existing law and carry out the ADA’s objectives of providing: “a clear and comprehensive national mandate for the elimination of discrimination” “clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protection to be available under the ADA” On July 26, 2010, the DOJ published an ANPRM titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. This was the first attempt to include website accessibility enforcement.

On September 15, 2010 Titles II and II were revised again and called the 2010 ADA Standards for Accessible Design. They did not include web accessibility. Hopes were raised when in the fall of 2015, the DOJ released a Statement of Regulatory that included three paragraphs on website accessibility. This document addressed the realization that it became impractical to separate Title II (Government websites) and Title III (public websites) because they are often blended together. The document states: “Public entities are increasingly providing their constituents access to government services and programs through their web sites. Information available on the Internet has become a gateway to education, and participation in many other public programs and activities. Through Government web sites, the public can obtain information or correspond with local officials without having to wait in line or be placed on hold. They can also pay fines, apply for benefits, renew State-issued identification, register to vote, file taxes, request copies of vital records, and complete numerous other everyday tasks.” “Consequently, the Department is planning to amend its regulation implementing title II of the ADA to require public entities that provide services, programs or activities to the public through Internet web sites to make their sites accessible to and usable by individuals with disabilities.” It went on to state that they “will be publishing separate NPRMs addressing web site accessibility pursuant to titles II and III of the ADA. The Department expects to publish the title II NPRM early in fiscal year 2016.” That never happened. In April 29, 2016, the DOJ issued a new SANPR called “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities”. It is one of four ADA rulemaking documents that were removed and are now archived.

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