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October 20, 2019

ADA and Section 508 - US legal requirements for web accessibility

Dekel Skoop COO at accessiBe
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Web Accessibility is fast emerging as one of the most important challenges for U.S. businesses.

With the spike in compliance lawsuits in recent years, companies can no longer ignore the accessibility issue and many business operators have at least heard of web accessibility. 

But understanding the ins and outs of what accessibility means practically and what the legal obligations are, is another matter. The first step for any American business looking to take web accessibility seriously is to understand the legal landscape they’ll have to deal with.

U.S. Accessibility 101: The Laws

The Rehabilitation Act of 1973 is America’s oldest accessibility-related legislation. While focusing primarily on how the government must treat and otherwise care for individuals with disabilities, the Act does contain some very important accessibility rules.

The Law’s Section 508 mandates that any technology employed by a federal agency or department be accessible to those with disabilities. The law applies to technologies that (a) will be utilized by federal employees and (b) those that the public will need to engage with in order to access the services of a government agency. This provision was expanded to include organizations that receive federal funding--educational institutions for instance--even though they themselves are not part of the government.

The second, more encompassing U.S. law mandating accessibility is the Americans with Disabilities Act or ADA.

The ADA prohibits discrimination against individuals with disabilities in several areas including private entities that are classified as “public accommodations.” This category includes businesses and places of work such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, and daycare centers.

Differences Between the Laws

There are some important differences between these two laws, both in terms of who they apply to, as well as their standards for compliance. 

Strictly speaking, Section 508 is a set of rules for government entities. This does not mean however those private companies don’t need to worry about it. The first thing worth noting here is that Section 508 rules apply to organizations that receive federal funding. From a legal perspective, once an organization takes money from the federal government, they agree to abide by the standards of Section 508. As the law states “any program or activity receiving federal financial assistance” is subject to all Rehabilitation Act rules. This fact was made clear several years back in an important lawsuit brought against Harvard University and MIT (both government-supported institutions) for failure to provide captioning to their online educational content.  

Furthermore, the accessibility rules binding government agencies aren’t just for their own networks. Federal organizations are also restricted in terms of which contractors or third party services they can bring on. Any digital platform their own employees will interact with, or those that will be used by the general public must also be accessible. 

These points should be taken into consideration by any growing business, especially SMBs looking to expand their horizons. Lack of compliance with Section 508 can be a barrier to receiving federal grants as well as contractual work with government agencies.

The ADA

Unlike Section 508, the ADA is very much a private sector law. The obligation placed on businesses by ADA is twofold: 

First, the ADA requires employers to provide reasonable accommodations to qualified applicants or employees.

As far as accommodating disabled customers, the ADA requires that no disabled person “be excluded from participation in or be denied the benefits of the services” of a publicly accessible business. Thus the law directs businesses to make "reasonable modifications" to their usual ways of doing things when serving people with disabilities.

Over the past several years, a steady stream of legal rulings requiring website compliance has proven time and again that ADA applies to online venues. The over 2,000 ADA lawsuits filed in 2018, as well as tens of thousands of demand letters, show that plaintiffs are capitalizing on this legal prerogative. 

Business owners can learn an important lesson here. When the ADA requires "reasonable modifications" to accommodate the disabled, what this means practically speaking is this: if the technology exists to restructure an online tool and make it accessible, businesses are obligated to do so.

How Do Businesses Comply with U.S. Accessibility Law?

Neither the ADA or Section 508 contains specific rules for how to achieve web compliance. 

When it comes to Section 508, companies can have been given clearer guidance by the U.S. Access Board, the federal agency devoted to accessibility issues. In a final rule that came into force at the beginning of 2018, the Board decided that the Web Content Accessibility Guidelines (WCAG) 2.0 of the World Wide Web Consortium (W3C) would be the standard by which organizations abide by the law. Most federal organizations are required to meet Level AA compliance laid out in the latest WCAG. The same applies to government-funded groups, or any company seeking to contract with the government in any substantial way. 

While the standards of WCAG are high, at least the rules are clear.

When it comes to ADA the situation is a bit more ambiguous. The Department of Justice--as well as several U.S. courts--has frequently referenced the WCAG success criteria as benchmarks for compliance. However, DOJ has declined to adopt the WCAG as an official legal standard for the ADA. As Assistant Attorney General Boyd wrote to Congress: “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.” 

In other words, because there are no clear rules, companies have leeway in figuring out how to make their sites compliant. 

This apparent ‘leniency’ may prove to be more of a curse than a blessing. Companies have been left with little to go on when figuring out how to make their websites legally compliant. 

In the current landscape, the WCAG remains the best measure of web accessibility when it comes to both the ADA and Section 508.

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