Minor WCAG 2.1 AA Issues Allowed Under New ADA Title II Rule

It’s not classified as an exception, but state and local governments don’t technically have to be 100% conformant with WCAG 2.1 AA.

Although WCAG 2.1 AA is the technical standard under the new ADA Title II web accessibility rule, the Department of Justice (DOJ) does allow for minor nonconformance.

So what this means is if you have minor accessibility issue, you’d still be considered compliant with Title II of the ADA. With this nuance, the DOJ is acknowledging the reality that even with genuine effort towards WCAG 2.1 AA conformance, there may be an oversight or an issue that goes undetected.

We’ll first examine language from the Fact Sheet: New Rule on the Accessibility of Web Content and Mobile Apps and then review the exact words outlined in the official rule.

Here’s what the fact sheet states (note how minor the example they give is):

What Happens If a State or Local Government Has Failed to Meet WCAG 2.1, Level AA in a Minor Way?

In some limited situations, state and local governments may be able to show that their web content or mobile apps do not meet WCAG Version 2.1, Level AA in a way that is so minor that it would not change a person with a disability’s access to the content or mobile app. If the state or local government can show that, then they are not violating the rule.

State and local governments cannot use this part of the rule to avoid trying to meet WCAG 2.1, Level AA. If a state or local government’s web content does not fully meet WCAG 2.1, Level AA, there are many things the government would have to prove to show that they did not violate the rule.

Example that violates the rule

A state’s online renewal form does not meet WCAG 2.1, Level AA.  Because of that, a person with a manual dexterity disability may need to spend a lot more time to renew their professional license online than someone without a disability. This person might also need to get help from someone who does not have a disability, give personal information to someone else, or go through a much harder and frustrating process than someone without a disability.  Even if this person with a disability could ultimately renew their license online, the state would violate the rule.

Example that meets the rule

A state’s web page with information about a park has text with a color contrast ratio that is 4.45:1. WCAG 2.1, Level AA requires a color contrast ratio of 4.5:1 for this text. It can be hard for some people with vision disabilities to see text on a web page if there is not enough contrast between the color of the text and the background color.  But that very small difference in color contrast ratio probably would not change whether most people with vision disabilities could read the text on the website and access the information about the park. If the state can prove the difference in color contrast is so small that it would not make it harder for people with disabilities to access the information about the park, the state would not violate the rule.

Fact Sheet Commentary

While the DOJ understands how difficult full WCAG 2.1 AA conformance is, the DOJ was very careful not to open up too many excuses.

Let’s extract the key language from the first paragraph:

  • In some limited situations
  • in a way that is so minor
  • that it would not change a person with a disability’s access

Also note these lines from the second paragraph:

  • cannot use this part of the rule to avoid trying to meet WCAG 2.1, Level AA
  • many things the government would have to prove to show that they did not violate the rule

And then, in the first example provided, the DOJ states that the ability to complete a task such as renewing a license online does not mean that the rule wasn’t violated. This is because so much time would be involved in renewing.

In the second example, we are given the example of color contrast being ever so slightly below the WCAG threshold for color contrast (4.5:1 contrast vs. 4.45:1). That’s barely any give in the example. In fact, that’s extremely stringent.

Official Rule Language: 28 CFR Part 35

The new web accessibility rule under Title II of the ADA is officially titled, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.

When we look to 28 CFR Part 35, we somewhat surprisingly don’t see too much more elaboration.

In an opening section titled, Table 1: Compliance Dates for WCAG 2.1 Level AA, the rule reads:

As discussed further in the section-by-section analysis of § 35.205, a
public entity will be deemed to have satisfied its obligations under § 35.200 in the limited circumstance in which the public entity can demonstrate that its nonconformance to the technical standard 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 access the same information, engage in the same interactions, conduct the same transactions, and otherwise
participate in or benefit from the same services, programs, and activities as individuals without disabilities, in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use.

28 CFR Part 35 on ADA.gov

When we arrive § 35.205, there isn’t too much more detail:

§ 35.205 Effect of noncompliance that has a minimal impact on access.

§ 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.

Rule Language Commentary

We’re given four conditions that must be met for minor nonconformance with WCAG 2.1 AA to be permissible, but, again, no specifics.

In theory, if a public entity were defending itself against an alleged ADA violation, it would basically need to argue that the person with a disability had the same level of access.

Summary

Although minor nonconformance is allowed in the new web accessibility rule, this is best seen as a last chance safety net than an exception or an excuse.

This minor affordance acknowledges the realities of web accessibility, but at the same time provides hardly any cushion for state and local governments.

Resources

The ADA Title II Resource Center was created to help public entities efficiently and effectively work towards ADA Title II compliance.

We also offer the audit, remediation, and user testing services needed for state and local governments to make their websites and other digital assets and content fully WCAG 2.1 AA conformant.

Visit Accessible.org to learn how we can help you.

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