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Comments Sought Now: ADA Proposed Rulemaking Affecting Website Accessibility

PRACTICE GROUPS

 

Until January 24, 2011, interested parties have the opportunity to comment on proposed federal regulation that will affect whether and how the Americans With Disabilities Act (“ADA”) applies to websites. This proposed regulation potentially affects any business or institution that uses the Internet to communicate with the public.

Background

The Department of Justice (“DOJ”) administers Title III (Public Accommodations) of the ADA, which prohibits discrimination on the basis of disability in “places of public accommodation,” a broad category which includes almost all businesses, institutions and facilities open to and serving the public, including restaurants, hotels, theaters, retail stores, shopping centers, banks, professional offices, other service businesses, transportation terminals, museums, schools, social services centers, golf courses, gyms and other places of recreation.

Current ADA regulations do not specifically address accessibility as it applies to websites for Public Accommodations. When the ADA first became law 20 years ago, the Internet was almost nonexistent. But today, access to personal, business and governmental websites is practically essential to participate fully in modern life. Although many of us take such access for granted, a great number of websites are inaccessible to persons with disabilities.

DOJ is now seeking comment on proposed rulemaking that would require Public Accommodations, as well as governments, to make their websites accessible. This comment process is called Advance Notice of Proposed Rulemaking (“ANPR”). Its purpose is to obtain input about whether DOJ should issue detailed regulations requiring web accessibility, and, if so, what is the proper scope of such regulations.

Website Accessibility

There are many technologies which can assist disabled persons in accessing and using the Web. Screen readers can convert visual information into speech for the visually impaired. Web videos can be captioned for hearing impaired persons. Keyboard commands can help persons unable to manipulate a mouse. Font size alternatives, color contrast, menu design, site navigation structure, timed response flexibility, and many other website design elements can be critical to a disabled person’s ability to use a site effectively.

However, in order for these assistive technologies and accessible design features to work, a website must be designed to be compatible with them. A set of voluntary international guidelines for web accessibility has been created by a special accessibility initiative of the World Wide Web Consortium. These guidelines, called the WCAG (Web Content Accessibility Guidelines) are being considered for possible adoption if DOJ proceeds with requiring web accessibility under the ADA.

Input Sought

Before undertaking the far-reaching task of implementing specific regulations for website accessibility, DOJ seeks input from those who would be affected. In addition to learning more about existing barriers to accessibility and proposed solutions, DOJ seeks to better understand what costs and implementation problems might result for businesses and service providers who would be subject to requirements for website accessibility.

Some of the issues on which comment is sought:

  • What standards, if any, should be adopted for website accessibility?
    • is WCAG (Web Content Accessibility Guidelines) 2.0 an appropriate set of standards?
    • if so, what level of compliance with WCAG would be feasible? (Level AA, intermediate access, has been suggested.)
  • Should coverage exemptions apply? Small business, small nonprofits, others?
    • what cost and operational burdens would web accessibility impose?
    • what new hardware/software would be required?
  • What resources and services currently exist to make web sites accessible? What governmental assistance would be appropriate to assist businesses with compliance?
  • Are there effective and reasonable alternatives to website accessibility which should be allowed?
  • When should web accessibility mandates become effective?
    • for new websites?
    • for existing websites?
    • should phase-in time differ according to entity size or category of use (e.g. retail websites, access to health records, etc.)?

How to Comment Before the January 24, 2011 Deadline

The complete ANPR is available for review. The webpage has a “Submit Comment” link in the upper right corner. Use that link to go to the Comment Submittal form. Enter your comment text (attaching a file is also allowed) and submit.


If you have any questions about this newsletter, please contact Robert I. Heller or the Riddell Williams attorney with whom you normally consult.

Riddell Williams attorneys provide advice to businesses and institutions on a wide variety of regulatory compliance matters. Our Intellectual Property Group regularly handles intellectual property and information technology issues in many different areas. Our Real Estate and Land Use Group advises clients on a full range of property related matters, including compliance with accessibility issues arising under the ADA. Our Employment Law Group provides businesses with counseling, training and a full range of litigation services in employment matters, including advice regarding discrimination and reasonable accommodation under the ADA.

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