Global Accessibility Awareness Day 2018: WCAG and Legal Updates

May 17, 2018

a11yRTP Meetup Accessibility Unconference

Global Accessibility Awareness Day 2018 is today, May 17. To celebrate the occasion, I’ll be attending the a11yRTP meetup Accessibility Unconference at the SAS Institute campus in Cary, NC. As an “unconference”, there will not be any planned sessions. Participants will suggest topics, and sessions will then be selected based on mutual interest. Two of the topics I hope to be able to participate in are the upcoming WCAG 2.1, as well as a review of recent and pending Web accessibility legal cases.

Web Content Accessibility Guidelines (WCAG) 2.1

An update to W3C’s Web Content Accessibility Guidelines (WCAG) is on the way. Originally published in May of 1999, the current version was released at the end of 2008.

Much has happened to the Web since then (think Mobile), so an update is probably past due. Welcome WCAG 2.1

In draft since early 2017, we should be seeing a final release sometime this year. It appears that the update contains primarily new content, but the existing 2.0 standards will still be valid. The new content focuses on Mobile Technology, Low Vision, and Cognitive Disabilities, and includes the following new Success Criteria:

  • 1.3.4 Orientation (AA)
  • 1.3.5 Identify Input Purpose (AA)
  • 1.3.6 Identify Purpose (AAA)
  • 1.4.10 Reflow (AA)
  • 1.4.11 Non-Text Contrast (AA)
  • 1.4.12 Text Spacing (AA)
  • 1.4.13 Content on Hover or Focus (AA)
  • 2.2.6 Timeouts (AAA)
  • 2.3.3 Animation from Interactions (AAA)
  • 2.5.1 Pointer Gestures (A)
  • 2.5.2 Pointer Cancellation (A)
  • 2.5.3 Character Key Shortcuts (A)
  • 2.5.4 Label in Name (A)
  • 2.5.5 Target Size (AAA)
  • 2.5.6 Concurrent Input Mechanisms (AAA)
  • 2.5.7 Motion Actuation (A)
  • 4.1.3 Status Messages (AA)

As of January 18, 2018, WCAG 2.0 has replaced the original standards of Section 508 of the Rehabilitation Act of 1973. Since it took the U.S. Government almost ten years to accept WCAG 2.0, it may be some time before we see the federal requirements adjusted to accommodate for 2.1. We do however, anticipate a quicker acceptance in Europe.

Accessibility Legal Updates

The number of Title III ADA lawsuits filed in federal court has been rising steadily, nearly tripling between 2013 and 2017. Over 7,600 were filed, over 800 credited to Web Accessibility lawsuits.

Even these numbers are not truly representative of the total volume of legal action that has been taken, as these figures only include federal cases. My source did not include either state or court filings, nor preliminary demand letters.

ADA Education and Reform Act (HR 620

Many of these cases are being filed on behalf of a small number of plaintiffs, by an even smaller group of law firms. While the majority of these cases seem justifiable, the situation has been motivating many businesses to seek legal relief. To this end, the U.S. House of Representatives passed ADA Education and Reform Act (HR 620).

“To amend the Americans with Disabilities Act of 1990 to promote compliance through education, to clarify the requirements for demand letters, to provide for a notice and cure period before the commencement of a private civil action, and for other purposes.”

While possibly intended to curb serial lawsuit filings, the new legislation could have far greater, unintentional consequences. The main goal is to have would-be plaintiffs notify a business before filing a suit, including a citation of the section of the ADA that they believe was violated, and what would need to be changed to appropriately accommodate access. Once notified, the business would then have sixty days to provide notice of intent to remove the barrier to access, and then 120 days more to show “substantial progress” towards removing the barrier.

The problem is that businesses have very little incentive to provide access, or even become educated on the requirements of the ADA, regardless of the lawsuits. Even when properly notified, businesses can take months, or even longer to remove barriers.

So far, the bill doesn’t seem to have made much progress in the Senate, so it may never make it to the President’s desk. Even then, it isn’t exactly clear if and how the amendment could be applied to Web accessibility suits

In case law, an array of suits continues to wind their way through the various district courts. Different judges, some within the same district, are now making different rulings on seemingly similar cases.

Robles v. Dominos Pizza LLC

In Robles v. Dominos Pizza LLC [PDF], a judge in the United States District Court Central District of California granted a defendant’s motion to dismiss a Web accessibility case related to the plaintiff’s inability to access the menus and applications on his iPhone, using the iPhone's "VoiceOver" software program.

Among other grounds, the defendant’s motion to dismiss claimed:

“The lawsuit violates fundamental principles of due process because the ADA, its implementing regulations, and the DOJ's accessibility guidelines not only are silent with respect to the standards that apply to private and public websites, but also fail to indicate whether compliance with the WCAG or the Apple Standards is tantamount to compliance with the statute.”

For what may be the first time, a court has dismissed a website accessibility case based on solely “due process” grounds. Judge S. James Otero offered this communication in his March 2017 Order Granting Defendant's Alternative Motion to Dismiss Or Stay:

“Almost seven years have transpired since the DOJ first posed these questions to the interested public, but the public has yet to receive a satisfactory answer. Indeed, the Court, after conducting a diligent search, has been unable to locate a single case in which a court has suggested, much less held, that persons and entities subject to Title III that have chosen to offer online access to their goods or services must do so in a manner that satisfies a particular WCAG conformance level.”

To be fair, the Obama Department of Justice had scheduled to issue new regulations concerning the websites of public accommodations and state and local governments back in 2017. The progress was likely impacted by the January 2017 Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. In July, the DOJ listed the new legislations on the “inactive” list, followed by official withdrawal in December, 2017.

Sean Gorecki v. Hobby Lobby Stores, Inc.

In a seemingly related case, Sean Gorecki v. Hobby Lobby Stores, Inc. [PDF] the position of the court took a 180 degree turn. In June of 2017, a judge from the same federal court refused to throw out a web accessibility lawsuit against the popular craft chain, Hobby Lobby, that had been brought in by a blind shopper. In contrast to the Domino’s Pizza case back in March of the same year, Judge John F. Walter rejected the defendant’s motion to dismiss on the grounds of due process. Their claim was that the hobby chain had “not had sufficient notice of the technical standards that would make its website fully compliant with the ADA.” The judge officially ruled:

“For over 20 years, the DOJ has consistently maintained that the ADA applies to private websites that meet the definition of a public accommodation. The department explained and clarified this position in 2010 in the publicly available ANPR. It is clear from the language in the ANPR that places that meet the definition of a public accommodation have a degree of flexibility in choosing, how to comply with Title III’s general requirements of nondiscrimination and effective communication — but, still, they must comply.”

Until the DOJ provides official technical requirements, or the U.S. Supreme Court takes action on one or more cases; we are likely to continue to see a wide variety of rulings. As always, the safest legal (and probably moral) decision, is for businesses to do their best in becoming compliant with the spirit, even if lacking the letter, of the law.


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