The idea for today’s blog entry comes to me from Richard Hunt. I recently saw an article talking about Internet accessibility that was full of errors. I sent it along to Richard. I originally wondered if we shouldn’t send a letter to the person who wrote it detailing all the errors. However, we decided that it just wouldn’t be worth our time. Richard gave me the idea that it might make for an interesting blog on common misperceptions of Internet accessibility compliance. I thought that was a great idea. Also, my friend and colleague, Robin Shea, frequently does quizzes on labor and employment issues. I always enjoy taking them. With all that in mind, here goes.
I
The Quiz
- The ADA requires all electronic and information technology to be accessible to persons with disabilities. True/false
- DOJ has regulations dealing with Internet accessibility. True/false
- DOJ is still working on Internet accessibility regulations. True/false
- If for some reason DOJ is not working on Internet accessibility regulations, the business gets a pass since it has no clue how to comply with the ADA. True/false
- WCAG 2.1 is binding on any Internet site. True/false
- The ADA applies to all businesses operating for public benefit. True/false
- For an Internet site to be ADA compliant, the site must allow a person with a disability to browse the site effectively. True/false
- The denial of cert. in Robles v. Domino’s really changed the lay of the land for Internet accessibility litigation. True/false
- Full compliance with WCAG 2.1 is ADA compliance. True/false
- If a website works for a screen reader, it will work for voice dictation users and vice a versa. True/false
- Membership organization do not have to worry about accessibility of their website to nonmembers. True/false
- Since it’s unclear how to comply with the ADA with respect to Internet sites, a business does not have to worry about complying.
II
Answers and Explanations
- False. The ADA, as we already know, breaks down into several different titles with each having different rules. Title I applies to employers of 15 or more. Title II applies to nonfederal governmental entity regardless of size. Title III applies to places of public accommodations as set forth in 42 U.S.C. §12181(7). So, the answer is theoretically an overstatement and is false. It is considerably more complicated than that. As a matter of preventive law, you certainly want to aim for this.
- False. Under the Obama administration, regulations were proposed. However, those regulations quite literally disappeared under the Trump administration.
- False. DOJ despite congressional pressure from members of both parties, DOJ has put the regulations on inactive status.
- False. This question goes to what we call the primary jurisdiction doctrine. As we have discussed before, such as here, most courts are rejecting this. This doctrine says that before an entity has to do something, there should be regulations first. In general, the courts are not buying this argument.
- False. WCAG is a voluntary set of guidelines. Under the Obama administration, DOJ was using it with respect to settling Internet site accessibility cases. Today, you do see private parties using WCAG 2.1 as the basis for settling Internet accessibility cases. That said, this is a completely voluntary standard even though as a practical matter it would be fair to say that WCAG 2.1 is the gold standard. Even so, that is quite a bit different than saying that WCAG 2.1 is binding on anyone.
- False. The ADA applies to all places of public accommodations as set forth in 42 U.S.C. 12181(7). That is a quite different animal than saying the ADA applies to all businesses operating for public benefit.
- False. The legal standard is meaningful accessibility. Of course, we don’t really know what that means.
- False. Despite the media coverage of this case, which we discussed here, it didn’t change anything. The game changer is the South Dakota v. Wayfair decision from the United States Supreme Court, which we discussed here. People may not realize the importance of this decision because the decision on its face had nothing to do with the ADA. However, it does not take a rocket scientist so to speak to see just how critical that decision is for Internet accessibility litigation.
- False. WCAG 2.1 AA may be the gold standard but the legal standard is meaningful accessibility. It is entirely possible you could be complying with WCAG 2.1 AA and still run into a user that does not have meaningful access to the site.
- False. In general, if an Internet site works for a screen reader, it will work for voice dictation users as well but not always. So, be sure to get your site tested for both screen readers and voice dictation users. Also, don’t forget about the deaf and hard of hearing with respect to any videos. Finally, keep in mind you might have an individual who uses more than one of the technologies at the same time. For example, a hard of hearing individual who uses voice dictation technology.
- True, such as we discussed here. However, all it takes is for a membership organization to be faced with a plaintiff that could be a member of that organization who cannot meaningfully access their Internet site to torpedo this defense.
- False. This is the due process defense. The courts are not buying it. That is, you still have to comply with the ADA, it is just that you have the flexibility for figuring out how since there are no regulations on point. So, due process doesn’t work.
III
How Did You Do (In Honor of the Upcoming Baseball Season).
11-12: Major Leaguer
9-10: AAA ball player
7-8: AA ball player
6 and below: Single A ball player