Signed into law in 1990, the American Disabilities Act (ADA) prohibits discrimination against people with disabilities and is aimed at making all public spaces inclusive and accessible to everyone. The ADA Amendments Act of 2008 later clarified the "definition of 'disability' to ensure that [it] would be broadly construed and applied without extensive analysis."
Let's take a look at how the ADA has affected websites in recent years, as well as what compliance entails for nonprofit organizations.
Until recently, organizations with websites were encouraged to comply with established Web accessibility standards, although compliance is not mandatory. The details of compliance were a hot topic of discussion as recently as June 5, 2018, within the World Wide Web Consortium (W3C), a private organization that recently released updated guidelines for its Web Accessibility Initiative (WAI).
The primary goal of WAI is to make the Internet a place where anyone can get involved "regardless of cognitive, neurological, visual, speech, physical, or auditory disabilities they may be burdened with." The guidelines developed by the initiative — with the help of disability organizations, government resources, and research labs — are known as the Web Content Accessibility Guidelines (WCAG), the latest version of which is WCAG 2.1.
A Top-Down View of What WCAG Compliance Entails
Adoption of WCAG includes providing text options for non-text content, clear titles for Web pages, "disability-considerate colors," and straightforward site structure so that people with focus-related disorders can navigate the site. It's worth noting that many websites were already compliant with the guidelines.
WCAG 2.0 outlined three additional levels of compliance. From low to high: Level A, Level AA, and Level AAA. Compliance at the lower levels is independent of compliance at the highest level, and WCAG does not recommend making AAA compliance a general policy requirement — for the simple reason that not all content can be modified to satisfy the criteria.
WCAG 2.1 builds on WCAG 2.0 guidelines and includes seventeen new criteria related to:
- technological advances in mobile devices
- visual disabilities such as color blindness and low vision
- learning and cognitive disabilities such as Attention Deficit Disorder (ADD) or age-related cognitive decline
WCAG 2.1 added five new success criteria to Level A, seven to Level AA, and another five to Level AAA. It's recommended that WCAG 2.0-compliant sites review WCAG 2.1 and make adjustments where possible to ensure that the site remains compliant with the latest guidelines. Though some of these new criteria require fairly serious programming knowledge, others involve simple formatting changes that can be performed with basic text editing tools.
An example of a text-related addition to Level AA is Success Criterion 1.4.12. Intended to ensure that readers "can override author specified text spacing to improve their reading experience without any loss of content or functionality," the criterion details the minimum amount of available adjustments for line height (line spacing), spacing after paragraphs, letter spacing (tracking), and word spacing. An example of non-compliance with the spec would be if a portion of text were to get cut off or become no longer visible when the page was enlarged.
As of July 24, 2018, the Department of Justice (DOJ) had not yet adopted WCAG 2.0 as the standard for the private sector, despite numerous private and governmental plaintiffs urging the government to make Level AA WCAG 2.0 compliance the standard for website accessibility.
ADA and the Ninth Circuit: The Most Recent Case With Big Implications
Since the inception of the ADA, numerous claims of inaccessibility have been brought before the United States Court of Appeals for the Ninth Circuit. Although many of the rulings against websites and the companies that operate them eventually are overturned, the process is time-consuming and costly, both financially and in terms of public sentiment.
It's been especially tricky since DOJ — after nearly eight years of review — decided to withdraw its proposed ADA rulemaking, leaving all ADA-related decisions up to the discretion of Ninth Circuit courts. The department's reasoning was based on the general sentiment that waiting for a DOJ ruling would cause plaintiffs "undue delay" and that "courts are perfectly capable of interpreting the meaning [of] 'equal' and 'effective.'"
Indeed, the Ninth Circuit court decision in Robels v. Domino’s Pizza was a boon for ADA website accessibility suits. After a California district court initially dismissed the case, stating that company websites cannot be deemed to have violated the ADA before the DOJ provides specific guidelines, the case was taken up by the Ninth Circuit for the previously stated reasons regarding "undue delay."
While the Ninth Circuit didn't rule that failure to comply with WCAG necessarily violates the ADA, its ruling did state that "the district court can order compliance with WCAG 2.0 as an equitable remedy, if after discovery, the website and app fail to satisfy the ADA." The Ninth Circuit does hold that covered sites be granted "maximum flexibility" in terms of meeting the requirements. Practically speaking, this means that any ADA-covered website could be ordered to become WCAG-compliant.
How Does This Affect Nonprofits?
Because courts cannot agree on whether a public accommodation refers only to a physical location, cases like Robels v. Domino's Pizza could mean increased risk for nonprofit websites. In fact, some courts deem websites to be public accommodations, even if they are not associated with an actual physical location. Until DOJ provides detailed guidelines, it seems these matters will be left entirely to the discretion of Ninth Circuit courts.
Although it's not technically required that nonprofits fully conform to WCAG guidelines to receive a Level AAA rating, investment in achieving Level AA compliance has considerable potential for saving organizations time and legal fees. This is especially true while we continue to wait on DOJ to specify legal requirements for ADA-covered organizations, companies, and websites. For the typical nonprofit, reaching the broadest possible audience is key to advancing its mission and goals. And the best way to do that is to ensure that anyone and everyone is able to actively engage with your content online.
Eric Van Buskirk is the publisher of Dopa, a W3C accessible website focused on mental health and psychological disorders. An expert on Internet search engines, he also oversaw some of the largest big-data studies on how Google ranks webpages.