When it comes to accommodating clients’ needs, whether your website is accessible to those with vision, hearing, or cognitive disabilities is not often a concern that readily comes to mind. However, lawsuits regarding web accessibility under the Americans with Disabilities Act (ADA) are being filed at an increasing rate. Lawsuits filed in federal court in 2018 are expected to surpass 2017 filings by 30%. This begs the question: what makes a website accessible? This question has plagued various public and private entities subject to the ADA for several years. Previously, the SC Employers’ Blog informed readers that the Department of Justice was expressing the real possibility of incorporating the World Wide Web Commission’s (W3C) Web Content Accessibility Guidelines (WCAG) 2.0, AA guidelines into the ADA regulations. However, the DOJ changed tacks and placed rulemaking related to web accessibility on the “Inactive” list.

In the interim, the W3C has bolstered its web accessibility guidelines, with the aptly named Web Content Accessibility Guidelines (WCAG) Level 2.1. The WCAG 2.0 guidelines set forth compliance guidelines to achieve four general principles: perceivable, operable, understandable, and robust. Under these four general principals were 61 individual points of criteria.  The key benchmarks (read flash points for litigation) of WCAG 2.0 include: captions for videos; requirements for color contrast and font sizes; keyboard only navigation; and alternative text coding that is compatible with screen reading software. The updated WCAG 2.1 standards expand upon the WCAG 2.0 standards by adding 17 additional success criteria to address accessibility issues not contemplated when the WCAG 2.0 standards were created in 2008. Indeed, the smart phone was in its infancy at that time, so it is no surprise that the updates incorporated in the WCAG 2.1 standards are geared, in part, towards mobile devices. Like the WCAG 2.0 standards, WCAG 2.1 still maintains A, AA, and AAA compliance levels. By complying with the WCAG 2.1 standards, one is also complying with the WCAG 2.0 standards.

One example of the new requirements set forth in the WCAG 2.1 standards prohibits the screen orientation from being restricted to one display (i.e., portrait or landscape), unless a specific display is essential (emphasis in original). The guidelines provide that examples where screen orientation may be essential are a bank check or a piano application. Another example is that users must be warned of the duration of any user inactivity that could cause data loss, unless the data is preserved for more than 20 hours when the user does not take any actions. In this instance, privacy regulations may require explicit user consent before user identification has been authenticated and before user data is preserved. A final example (but not exhaustive) requires that the size of the target for pointer input (i.e., a mouse, pen, or touch contact) be of a certain pixel size, with a few exceptions.

It is important to emphasize that the WCAG standards are industry standards and are not currently included in the statutes or accompanying regulations of the ADA. While some courts in various jurisdictions and previous settlements with DOJ investigations have required entities to conform to the WCAG 2.0 standards, other courts have found that to impose these standards would violate due process in the absence of DOJ rulemaking. What these standards do represent is a best practice for web accessibility. While time will tell if the WCAG 2.1 standards will obtain the same preferential treatment that the WCAG 2.0 standards has garnered, the W3C stresses that “the use of WCAG 2.1 [will] maximize future applicability of accessibility efforts.”

To read WCAG 2.1, click here.