Loyola University Chicago School of Law, JD 2019
The World Wide Web Consortium (“W3C”) is a collaborative community that develops standards for the Internet. One of W3C’s goals is to make the web accessible to everyone, regardless of an individual’s accessibility needs. Section 508 of the Rehabilitation Act requires that the electronic and information technology of federal agencies are accessible to people with disabilities, whether they are employees or members of the public. W3C publishes the Web Content Accessibility Guide (WCAG), which addresses how to create accessible websites. The WCAG was used by the U.S. Access Board to create standards for Section 508. Recent cases like Gorecki v. Hobby Lobby Stores, Inc. and Gil v. Winn-Dixie Stores, Inc. reveal the need to not only comply with these laws and regulations, but to adopt a culture that goes above and beyond the minimum.
What makes a website accessible?
Section 508 was published in the Federal Register on December 21, 2000. However, the U.S. Access Board recently promulgated a final rule that will update Section 508 in January 2018. The U.S. Access Board is a federal agency that promotes equality and accessibility for people with accessibility needs. The U.S. Access Board’s final rule adopted the WCAG 2.0 recommendations. The revisions made to the information and communication technologies performance requirements include changing speech-based modes for input, control, or operation that can also be used without speech and manual operations, which should be accessible for those who need mobility accommodations.
Since the passage of the new final rule, W3C has created new guidelines. WCAG 2.1 was published in June 2018. Some of the new requirements within WCAG 2.1 includes giving users enough time to read and interact with content and making it easier for users to use inputs other than a keyboard. Alternative inputs methods include mouth sticks, eye movement tracking, and pointers.
Web Design in the Courts
In Gil v. Winn-Dixie Stores, Inc., the plaintiff, Juan Carlos Gil, alleged that Winn-Dixie’s website was not accessible to the visually impaired. Winn-Dixie’s grocery stores and pharmacies were categorized as public accommodations under the ADA, but at the time of the case, they did not have an ADA policy for its website. An issue in this case was whether the website itself is a public accommodation. Mr. Gil claimed that he could not see computer screens so he would use screen reader software. Without access to the website, Mr. Gil was unable to get coupons easily without having to depend on others, like friends or Winn-Dixie employees. The court found that the cost to make the Winn-Dixie website accessible for Mr. Gil and others who use screen reader software would amount to $250,000, and reasoned that the ADA not only dictates physical access to public accommodations, but also websites.
Similarly, in Gorecki v. Hobby Lobby Stores, Inc., the plaintiff, Sean Gorecki, could not access Hobby Lobby’s website using his screen reading software. The court cites that the Department of Justice has affirmed that Title III of the ADA applies to websites that meet the definition of public accommodation.
Both Mr. Gil and Mr. Gorecki used the screen reader JAWS (Job Access with Speech). JAWS is able to read the screen or display the text through a braille display. Developing websites that are compatible with JAWS and other similar devices and software is difficult. JAWS identifies content on the web page and announces what the particular object is (like a checkbox) and what it says. However, it uses the context on the webpage to figure out exactly what to relay to the user. For example, for text boxes, JAWS communicates to the user what the nearest text that comes before the text box; for checkboxes, JAWS communicates what comes after the box. Therefore, what may look visually appealing is not enough for developers of this type of software. Extra lines of code such as labels are necessary to allow JAWS to understand what text goes with what element or feature.
In both Gil and Gorecki, the need for websites to be maintained not only to the new final rule but also updates like WCAG 2.1 demonstrate that web designers and businesses must be informed and proactive. Waiting to update a website until it is absolutely necessary can be costly, not just in consulting fees but in legal fees if the company gets caught not being in compliance with these new regulations.
Although U.S. governmental regulations may not keep pace with developments in web design, user interface design, and user experience design should always have every user in mind and keep pace with W3C guidelines. Although some situations may be dismissed as edge cases, developing web experiences that are accessible to all is not only legally savvy but important for all consumers.