DOJ Guidance on Web Accessibility and the ADA as Related to Title II

On March 18, 2022, the Department of Justice (DOJ) published Guidance on Web Accessibility and the ADA (Americans with Disabilities Act). The effort focuses specifically on Title II— State and Local Governments (and Public Transportation) and Title III— Public Accommodations and Commercial Facilities. The guidance seems to target business owners and government employees unfamiliar with the DOJ’s long-standing position on website accessibility. The legal industry and industry advocates generally regard the guidance as having provided no new legal insights (notable examples include: Seyfarth, Ken Nakata, American Foundation for the Blind, McAfee & Taft,William D. Goren, Jackson Lewis, Barnes & Thornburg LLP, Ogletree Deakins, Ballard Spahr).

While the guidance may not offer those with industry expertise any new perspectives, it does offer those under Title II some insight into the DOJ audit process and how actions are subsequently conducted without cited technical standards. This insight is essential, as many under Title II will experience a disconnect between the DOJ’s reliance on the definitions of general nondiscrimination and effective communication, and an organization’s potential requirements under Section 508 of the Rehabilitation Act, state laws, and organizational policies which specify technical requirements.

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Editor’s Note: This post is adapted from the article, “DOJ Guidance on Web Accessibility and the ADA as Related to Title II”, originally published in the June 2022 issue of Mealey’s® Litigation Report: Cyber Tech & E-Commerce. Mealey’s is a subscription-based information provider and division of LexisNexis.

Title II, State, Local, Administrative Requirements

Title II applies to state and local government entities, including a diverse set of public services, including public libraries, city police departments, public universities, community colleges, county social services, and state vocational rehabilitation agencies, to name a few instances. Many of these public entities are covered by many federal and state laws that cite a technical accessibility standard. The vast majority of these state and local laws cite the Web Content Accessibility Guidelines version 2.0 or Section 508 of the Rehabilitation Act of 1973. Section 508 of the Rehabilitation Act of 1973 is a federal law requiring all covered agencies to develop, procure, maintain, or use accessible electronic and information technology. Given Section 508 points to the Web Content Accessibility Guidelines (WCAG) 2.0 level AA by reference, most public entities are under a minimum of WCAG 2.0 level AA technical requirements. Conversely, the DOJ has repeatedly reaffirmed they will not evaluate to a standard lower than cited in other applicable laws. This flexible relationship is seen in the Americans with Disabilities Act, Title II Technical Assistance Manual, II-1.4000 Relationship to other laws, which states:

II-1.4000 Relationship to other laws

II-1.4100 Rehabilitation Act. Title II provides protections to individuals with disabilities that are at least equal to those provided by the nondiscrimination provisions of title V of the Rehabilitation Act. Title V includes such provisions as section 501, which prohibits discrimination on the basis of disability in Federal employment; section 503, which addresses the employment practices of Federal contractors; and section 504, which covers all programs receiving Federal financial assistance and all the operations of Federal Executive agencies. Title II may not be interpreted to provide a lesser degree of protection to individuals with disabilities than is provided under these laws.

II-1.4200 Other Federal and State laws. Title II does not disturb other Federal laws or any State laws that provide protection for individuals with disabilities at a level greater or equal to that provided by the ADA. It prevails over any conflicting State laws.

In summary, the DOJ will evaluate to a technical standard greater than or equal to an entity’s obligation under other laws, which is generally the WCAG 2.0.

DOJ Audit

The combination of the DOJ guidance and commitment to evaluate to a minimum technical standard based on other laws leads Title II organizations to believe that an organization that adheres to a cited WCAG technical standard during the procurement, construction, and maintenance of digital technology and services has met its accessibility obligations. This assumption is incorrect. While the DOJ may honor the entity’s guidelines as a minimum, the DOJ is not limited to any accessibility standard or guideline in rule. Instead, the DOJ has repeatedly cited the individual’s needs, as described by general nondiscrimination and effective communication as the requirement. These criteria appear in several guidance sections:

State and local governments (Title II)

Title II of the ADA prohibits discrimination against people with disabilities in all services, programs, and activities of state and local governments. State and local governments must take steps to ensure that their communications with people with disabilities are as effective as their communications with others.

How to Make Web Content Accessible to People with Disabilities

The Department of Justice does not have a regulation setting detailed standards, but the Department’s long-standing interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility. 42 U.S.C. §§ 12132, 12182(a); 28 C.F.R. §§ 35.130, 35.160(a), 36.201, 36.303(c).

This people-centric audit philosophy was eloquently delivered to the Honorable Ted Budd, U.S. House of Representatives, asking why the agency abandoned an eight-year rule-making process in 2017 that would have provided specific technical accessibility requirements and prevented further guidance (RIN 1190-AA61, RIN 1190-AA65). This letter reads in part:

Additionally, 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. 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. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA. –  The Honorable Ted Budd, U.S. House of Representatives

In short, the intent is to protect qualified individuals with disabilities from discrimination based on disability for services, programs, or activities of all state and local governments, and is not limited to any standard or guideline.

Reconciling Technical Standards with General Nondiscrimination / Effective Communication

So how does a Title II entity reconcile minimum technical standards under other laws and administrative rules with a DOJ’s evaluation process that evaluates based on the needs of the individual? The answer is scattered across an organization’s policies and procedures.

Product/Service Acquisition Policies

When acquiring products and services through purchase or other means, the entity evaluates to the organization’s technical standard outlined in the governing policy(s). In the U.S., commonly cited technical policy evaluation criteria include WCAG 2.0/2.1 Level AA and Section 508. Title II organizations should follow a standardized product acquisition process that evaluates vendor-provided credible evidence. For example, the most common form of vendor provided credible evidence for product acquisition is an Accessibility Conformance Report (ACR) based on a Voluntary Product Accessibility Template (VPAT). An ACR is a vendor’s technical analysis of their product which outlines accessibility defects. A credible evidence review aims to plan for defects that could potentially impact people with disabilities. When a substantial product defect is noted, the organization should create a plan to minimize the impact. The two most common names for these remediation plans include a Corrective Action Plan and an Equally Effective Alternative Action Plan (EEAAP). At this point, the organization has made substantial efforts to ensure the most inclusive environment possible based on the available information.

Build/Maintain Policy

In addition to acquiring products and services, an entity must evaluate technologies and services constructed within the organization. Once again, the entity will look to their local policies for technical evaluation criteria, such as WCAG 2.0/2.1 and focus on ensuring any gaps should go through an exception process that includes creating an accessibility plan, such as a CAP or EEAAP.

Compliance, Reporting, and Monitoring Policy(s) and Procedures

It is impossible to know the needs of every person with a qualifying disability. While the organization has made a concerted effort to ensure an inclusive environment through rigorous evaluation, there will be instances when the needs of the individual are still not met. There are several reasons for this. First, the Web Content Accessibility Guidelines (WCAG) are evolving under the ownership of the World Wide Web Consortium (W3C). We can see this continuous improvement in the WCAG versioning: 1.0 (1999), 2.0 (2008), 2.1 (2018), and 2.2 (Working Draft).

Vendor attestations, such as an ACR/VPAT may be inaccurate or unclear. The evaluator may not have recognized the severity of a defect. As such, the last step for an organization under Title II is to have an easily discoverable reporting process that allows individuals to alert the organization to a need. The organization can then evaluate the need, and, if appropriate, will create either an individual accommodation or create/modify a corrective action plan so others may avoid the defect. Many DOJ actions support the assertion that a robust set of policies that include acquisition, development, and reporting processes will effectively meet the General Nondiscrimination and Effective Communication requirement.

Examples for Title II from the DOJ Guidance

One of the most relevant examples for Title II provided in the DOJ’s guidance update is the settlement agreement with Louisiana Tech University and the Board of Superiors. As expected, the DOJ highlights the needs of the individual, with no reference to a technical standard in the governing expectations. Frequently, the DOJ will include language that references effective communication, as in agreements with Nueces County, Texas and Miami University, or general disabilities, as with Lumpkin Country, Georgia. In summary, organizations will have laid a solid foundation for compliance with general nondiscrimination and effective communication if they have the policies, procedures, and mechanisms to perform the following:

• Evaluate and plan during product and services acquisition
• Develop processes for accessible internal product and service development
• Have an easily discoverable reporting system to allow people with disabilities to report issues

Title II Success Characteristics

Many Title II organizations have substantially improved their environments as more employees and customers work remotely. The following are some of the characteristics we have encountered when working with organizations that commit to an inclusive culture.

• The organization has an accessibility policy that outlines who is responsible for accessibility, specifies roles and responsibilities, and sets or references a minimum technical WCAG standard.
• The organization has a purchasing policy and procedures that ensure products and services are evaluated for accessibility.
• The organization has an exception process that includes the creation of Corrective Action Plans (CAP) / Equally Effective Alternative Action Plan (EEAA).
• The organization has easily discoverable reporting mechanism for people with disabilities to report issues.
• The higher the WCAG level adopted by the organization, the fewer technical gaps. Hiding behind WCAG 2.0 level AA does not exempt an organization from principles found in WCAG 2.1 level AA. For example, WCAG 2.1 has success criteria specifically for mobile devices, whereas WCAG 2.0 was created BEFORE smartphones and lacks these success criteria. Likewise, WCAG 2.1 has success criteria specifically beneficial for people who are color blind.WCAG 2.1 Additional Success Criteria Examples:

• Some organizations strive to create environments where a person should not have to self-identify. For example, people with invisible disabilities such as colorblindness and neurodiversity issues like ADHD and Dyslexia should not have to self-identify for everyday needs.

Summary

In conclusion, DOJ Guidance on Web Accessibility and the ADA do not provide new insights for experts knowledgeable in Title II. For the less familiar, the guidance describes the DOJ’s commitment to general nondiscrimination and effective communication, which in part states no qualified individual with a disability shall, by reason of such disability, 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 such entity. 

By looking at the settlements cited in the Title II Sample Cases, we get a sense of how organizations can comply with general nondiscrimination and effective communication requirements by avoiding complaints and having a defensible environment. This culture includes having policies and procedures that strive to acquire, build, and maintain inclusive products that best meet the needs of all individuals, including people with disabilities.

While technical standards such as the WCAG are a part of this process, equally essential are processes such as creating accessibility plans (CAP, EEAAP) as part of an exception process and having an easily discoverable reporting and monitoring process. In conclusion, the DOJ has repeatedly cited technical standards and guidelines such as the WCAG but has steadfastly maintained that it is the person-centric general nondiscrimination and effective communication requirements as the enabling language.

Digital Accessibility Resources

• What is WCAG? An Overview of Web Content Accessibility Guidelines
• Determining Accessibility Under the Texas Administrative Code
• More Commentaries Featured in Mealey’s Litigation Report

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