What does the Biden Presidency mean for accessibility?

Joseph R. Biden was sworn in as the 46th President of the United States on January 20, 2021 at noon, US Eastern Time.  It is safe to say that regardless of where you stand on the political spectrum, the Biden Presidency is definitely going to be very different from his predecessor’s.  One key area that I anticipate to see major differences is in accessibility.

If you’re new to accessibility, here’s a quick breakdown of regulations in the United States relating to ICT accessibility:

  • Section 508 of the Rehabilitation Act requires accessibility for ICT products and services procured or developed by the Executive Branch of the US Government. It contains several technical requirements and also incorporates external standards such as WCAG.
  • Section 504 of the Rehabilitation Act requires accessibility of public sector programs funded with Federal money
  • Americans with Disabilities Act requires accessibility for ICT products and services procured or developed by state and local governments.
  • Various other Federal Regulations exist mandating accessibility of ICT in the private sector, such as:
    • Section 255 of the Telecommunications Act
    • Air Carrier Access Act
    • 21st Century Communications and Video Accessibility Act (CVAA)

Beyond the above, there are a number of other non-discrimination laws exist that mostly imply requirements around ICT accessibility, such as things like the Fair Housing Act and Fair Credit Reporting Act.  Another one that fits in this category is ADA Title III.

According to ADA.gov, “Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations”. However, there are two sticking points:

  1. The “Web” is not defined as a place of public accommodation, and;
  2. There is no defined technical standard for determining conformance with the ADA on the Web like there are with physical spaces.

To be clear, this doesn’t mean the ADA doesn’t apply to the Web. At this point, any such claim in a legal context will be viewed very poorly by most judges in the United States. While the ADA doesn’t explicitly say that the Web is a place of public accommodation, there’s plenty of case law established already, and plenty of Amicus Curae filings by the Department of Justice to make it clear that ADA applies to the Web.

During the Obama Presidency, the DOJ issued an Advance Notice of Rulemaking (ANPRM) to end some of the ambiguity around the requirements for accessibility on the Web. However, the behind-the-scenes howling from the private sector resulted in the Obama DOJ kicking the can. This, unfortunately,  had the exactly wrong effect for the private sector.  While they hoped to avoid accessibility regulations in general, what they got almost exactly 2 years later was utter chaos.  Why? Two words: ADA Trolls.

In the Fall of 2016, the floodgates opened on web-related ADA lawsuits. By the end of 2016 all of the major retailers you’re used to seeing in a typical mall in the United States had been served a demand letter or had been sued in the Pennsylvania Western District.  It didn’t take long for copycats to come out of the woodwork in Texas, Virginia, Florida, New York, and California. Today, between 20 and 40 ADA lawsuits are filed in US Federal Courts every single day for accessibility on the Web or mobile apps.

Unfortunately, there’s still no established standard for compliance with the ADA. On a practical basis, the standard used for most settlements or judgements in these cases tends to be WCAG 2.0 (moving toward 2.1 these days) at the AA Level. Conformance at this level has been our recommendation for minimum conformance for our customers since the company was started, but the legal landscape is a little more complex. We’ve seen more than a handful of companies agree to some unusually strict settlement terms over the years.

What will Biden do?

From his explicit references to the rights of the disabled in his campaign and victory speeches to his diligence in having sign language interpreters at his events and even having Andrea Hall sign while giving the Pledge of Allegiance, it is safe to say that the Biden Administration will be making some changes to ADA guidance and enforcement. I predict that the Biden DOJ will do two important things:

  1. Kickoff renewed efforts around Project Civic Access and;
  2. Go through with a Final Rule clarifying the technical requirements for ADA conformance for the Web and Mobile apps

On that latter point, I should mention that there’s no need for alarm. In fact, the clarity that results from having defined standards should bring comfort. Another thing that should bring comfort is that I anticipate the end result will simply be formalizing what we’ve already come to expect: conformance with ADA requires conformance with WCAG 2.1 Level AA. 

What does that mean for you? Hopefully nothing because that’s what you’re already doing. If you’re not, then I recommend getting started. If you need help, shoot us an email: talktous@tenon.io

Start your free trial of Tenon today!