On April 8, 2024, the United States Department of Justice (DOJ) issued long awaited digital accessibility regulations under Title II of the Americans with Disabilities Act (ADA) requiring Amtrak, state and local governments, and their subdivisions to make their websites, mobile apps, and most electronic content published on their digital platforms accessible to people with disabilities. Subject to several exceptions explained in the DOJ’s accompanying Fact Sheet, the digital accessibility regulations will require conformance with both Level A and AA success criteria of version 2.1 of the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG). Failure to comply can lead to costly lawsuits in which the court may order compliance, and award damages and attorneys’ fees.
Although the Title II regulations do not apply to the private sector directly, government contractors may soon feel increased pressure from their customers to design for full WCAG 2.1 Level A and AA conformance, and to provide accessible documentation for their products and services. Failure to supply conforming offerings or related documentation may lead to loss of government contracts, or DOJ or consumer litigation against your government customers.
Background on Title II of the ADA
Title II of the ADA requires equal access for qualified individuals with disabilities to programs, services, and activities of state and local “public entities.” Public entities include, but are not limited to:
- Every department and agency of a state, county, or city/town/village;
- Public schools and school districts, colleges, and universities;
- Public hospitals and other healthcare providers;
- Special district governments, defined as a “public entity—other than a county, municipality, township, or independent school district—authorized by State law to provide one function or a limited number of designated functions with sufficient administrative and fiscal autonomy to qualify as a separate government and whose population is not calculated by the United States Census Bureau in the most recent decennial Census or Small Area Income and Poverty Estimates”; and
- Public transportation agencies.
Under the current ADA rules, which will remain in effect after the digital accessibility regulations come into force, public entities must already provide individuals with disabilities with effective communication, reasonable modifications, and an equal opportunity to participate in or benefit from their services, programs, and activities, unless doing so would impose an undue burden on the entity or fundamentally alter the program, service, or activity. However, although the DOJ has long recognized that government websites are covered, it has not imposed any mandatory technical standards for states and municipalities to follow to ensure that their digital platforms are sufficiently accessible to people with disabilities until now.
Impact of the Digital Accessibility Regulations on Private Companies
Does your company design any public-facing digital platforms for state or local public entities? Does it post any training, marketing, or other electronic content on a public entity’s website or in its mobile app? Does it provide any digital products or services to public entities that then become available to the public through any of the entity’s programs, services, or activities? If the answer to any of these three questions is yes, then the burden will fall on your company to deliver compliant solutions. If your company is not prepared to meet this burden, the public entity may turn to one of your competitors instead.
If your company is asked to fully meet WCAG 2.1 Level A and AA compliance, please note that this technical standard is higher than accessibility standards for which your company may be designing currently for other customers. For example, the Section 508 Revised Standards applicable to the federal government’s procurement of electronic and information technology are based on the older WCAG 2.0, which does not incorporate some WCAG 2.1 standards specifically aimed at improving access on mobile devices. Likewise, no laws enforced by the Federal Communications Commission (FCC) require full WCAG compliance, so even if your company designs for conformance with FCC accessibility performance objectives, it may need to do more to achieve full WCAG 2.1 conformance.
Compliance Deadlines
Public entities with a population of less than 50,000 and special district governments of any size will have three years to come into compliance with the digital accessibility regulations. Public entities with a population of 50,000 or more will have two years to come into compliance. The clock will start when the final rules are published in the Federal Register. However, impacted government contractors should be ready to implement accessible design earlier to enable their government customers to meet their compliance deadlines.
Penalties for Non-Compliance
The consequences of violating Title II of the ADA can be severe. An aggrieved individual with a disability may sue a public entity in state or federal court, which can in turn lead to long and costly litigation. If the court finds that the public entity did not make its websites, mobile apps, or electronic content sufficiently accessible, it can order the entity to remediate the compliance gaps. And retrofitting inaccessible software and content often necessitates a substantial investment of time and money: especially if a complex website or mobile app needs to be rebuilt from the ground up because it is impractical to incorporate accessibility into the existing architecture.
Additionally, the court may award damages and attorneys’ fees to plaintiffs, thereby further increasing litigation costs.
Contact the CommLaw Group for Help
If you have any questions about how the digital accessibility regulations may impact your business, please contact Michal J. Nowicki, Esq., at (703) 714-1311 or mjn@commlawgroup.com.
