There’s a section in the new ADA Title II web accessibility rule that provides an ever so slight affordance for an instance of nonconformance with the WCAG 2.1 AA technical standard. The problem is, practically, this potential exception for nonconformance doesn’t really help public entities.
Let’s take a look at the regulatory language and the DOJ’s commentary from the new web rule, titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.
Table of Contents
Section 32.205
Per § 35.205 Effect of noncompliance that has a minimal impact on access.
A public entity that is not in full compliance with the requirements of § 35.200(b) will be deemed to have met the requirements of § 35.200 in the limited circumstance in which the public entity can demonstrate that the noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the public entity’s web content or mobile app to do any of the following in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use:
(a) Access the same information as individuals without disabilities;
(b) Engage in the same interactions as individuals without disabilities;
(c) Conduct the same transactions as individuals without disabilities; and
(d) Otherwise participate in or benefit from the same services, programs, and activities as individuals without disabilities.
Note all four conditions which must be met for a potential defense for § 35.205 exception for nonconformance to even be raised. In practice, will there ever be a scenario where a public instrumentality will pay the immense legal fees necessary to even attempt to make a defense?
Because a theoretical plaintiffs’ law firm can always make a case that any instance of WCAG 2.1 AA nonconformance has denied or impeded their client access in some way, form, or fashion.
So while, in theory, there is some bend when it comes to strict WCAG 2.1 AA conformance, in practice, there isn’t. And maintaining full conformance across an entire website with never a slip up is extremely difficult.
Conformance Difficulty
The DOJ recognized and even talked about the difficulty:
As discussed in this section, public comments indicated that the final rule needed to account for the increased risk of instances of nonconformance to the technical standard, due to the unique and particular challenges to achieving perfect, uninterrupted conformance in the digital space. The Department believes that § 35.205 meets this need, ensuring the full and equal access to which individuals with disabilities are entitled while allowing some flexibility for public entities if nonconformance to WCAG 2.1 Level AA is so minimal as to not affect use of the public entity’s web content or mobile app.
§ 35.205 does not even come remotely close to addressing the difficulty in maintaining perfect conformance.
Practical Application
One huge problem is § 35.205 doesn’t really come into effect until after a complaint has been filed. In other words, it’s not a defense that will preempt a lawsuit. Rather, it’s a potential defense if a complaint is filed.
The difference in pre and post litigation is everything – once litigation is initiated, expenses begin running and the bill total can escalate rapidly.
For this carve out to be a real difference maker, it need to at least outline permissible instances of nonconformance or something along these lines. As the new rule stands, this potential allowance is little more than cosmetic relief.
Takeaway
Entities covered by Title II of the ADA must pay extremely close attention to detail. Sourcing an audit and possibly remediation to expert service providers is critical, but so is rigorous training for any staff who are even remotely involved in digital content.
In reality, § 35.205 provides very little relief.