As I’ve said more than once, I view the Department of Justice’s much-delayed plans to mandate “accessibility” of websites under the Americans with Disabilities Act (ADA) as perhaps the single most under-reported and alarming regulation that I know of in the federal pipeline. Here is a June rundown from Porter Wright attorneys Bob Morgan and Melissa Barnett of the state of play on the issue. It notes, as has our coverage, that even without getting around to issuing regs, DoJ is busy using ADA settlements to impose its views of accessibility on businesses it sues.
The article affords some glimpses of the staggering hassles that lie ahead for those who sell or promote products or services online, including for many the likely need to hire not just consulting help but full-time web accessibility specialists. Just one excerpt:
…making a website accessible to disabled users centers on design and functionality. The complexity of achieving this objective varies by the “type of content, the size and complexity of the site, and the development tools and environment,” according to the World Wide Web Consortium. But hundreds of design options exist to make a website accessible; WGAC 2.0 [the Web Content Accessibility Guidelines] alone provides 206 options. These include, but are not limited to, providing links to definitions, removing time limits for activities, providing spoken word versions of text, and ensuring keyboard control for all website functions.
One wording in this passage strikes me as a bit peculiar. To say that WGAC “alone provides 206 options” might suggest that achieving legal compliance is a snap — look, there are 206 options to comply, just pick one. But it doesn’t mean that, does it? Just because you’ve arranged to “provide spoken word versions of text” to fend off a lawsuit on behalf of blind users doesn’t mean you can get out of a lawsuit representing persons lacking fine hand motor control for not “ensuring keyboard control for all website functions” (i.e., disabling any mouse-only functions and patching any failures this generates in your current design). And even if you can do both those things along with fifty more, you may still be exposed to a lawsuit if you haven’t gotten around to “removing time limits for activities.”
According to Porter Wright’s Morgan and Barnett the Department of Justice is now expected to release its new rule in April 2016. Do not count on Congress to save the day; its record in the past under both Republican and Democratic leadership has been one of stepping in to expand the scope of the ADA, not rein in its more extreme applications. A better hope is the courts, which, despite some recent erosion, have not overturned some noteworthy precedents in which judges declined to extend ADA regulation wholesale from physical to virtual “space.”