In July, the Department of Justice (DOJ) moved forward with a proposed rule to strengthen web and mobile accessibility compliance.
The changes will impact organizations that must comply with Title II of the Americans with Disabilities Act (ADA), which include state and local government entities.
The rulemaking process takes time — and members of the public can submit comments on registration.gov until October 3, 2023 — but the Justice Department seems committed to making a change.
“This marks the first time in the history of the Americans with Disabilities Act that the Justice Department has issued a proposed rule on website accessibility,” said Attorney General Merrick B. Garland in a press release announcing the new rule.
“This proposed rule seeks to ensure that Americans with disabilities have equal access to the websites and apps that connect them to essential services provided by state and local governments.”
Here’s what public organizations — and private businesses — should know about the new Title II regulations.
The purpose of the new rule is to define clear technical standards for digital accessibility. Currently, state and federal governments must provide accessible content, regardless of whether they receive federal funding.
But while compliance is mandatory, Congress hasn’t established clear rules for digital content. Section 508 of the Rehabilitation Act of 1973, which also requires web accessibility, establishes the Web Content Accessibility Guidelines (WCAG) version 2.0 as the standards for federally funded agencies — but that doesn’t directly apply to every organization covered by Title II.
The DOJ’s new rule will explicitly require state and federal websites to conform with WCAG 2.1 Level A/AA. That could have a dramatic impact for people with disabilities:
The new rule has been highly anticipated in digital accessibility and disability communities. The ADA will finally have clear standards — though for now, those standards will only apply to Title II.
Related: New York State Agrees to Fix Accessibility Barriers On COVID-19 Vaccination Website
Private businesses are subject to Title III of the ADA, which prohibits discrimination in “places of public accommodation.”
While the DOJ has expressed its opinion that websites and mobile apps are “places of public accommodation,” the new Title II rules will not directly apply to private organizations.
With that said, numerous digital accessibility lawsuits have cited WCAG 2.1 Level AA, and the Justice Department recommends using WCAG to test content for Title III compliance.
In other words: WCAG conformance will remain voluntary for private organizations, but now that the DOJ has established WCAG 2.1 Level AA as a de facto standard, businesses should follow that standard to ensure ADA compliance.
Related: Which WCAG Standards Do I Need to Follow?
The new rule will not go into effect until after the public comment period, which is expected to conclude on October 3, 2023. At that point, the rule may be adjusted.
Realistically, we may wait a big longer for WCAG 2.1 to become law in the United States — but organizations should begin preparing for the change by testing their content.
While many accessibility improvements can be completed easily (and at little to no cost), others require more work. Federal and state agencies will probably have a grace period for compliance, but agencies that move quickly will be well positioned for compliance when the new rule goes into effect.
Related: Why Your Accessibility Strategy Shouldn't Stop with ADA Compliance
And while digital accessibility carries a cost, it’s an essential consideration — particularly for websites that offer vital services to the public.
“This groundbreaking moment makes clear our commitment to eradicating the barriers faced by people with disabilities and affording equal access to online government programs and services that people around the country depend on every day.” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division.
“We will continue to use every tool available to ensure that people with disabilities are provided full access to the digital town square.”
To start building a strategy for digital compliance, send us a message or get started with a free automated WCAG 2.1 Level A/AA website analysis.