Author’s Note: Idiom “Is the Juice Worth the Squeeze” means “is it worth it.”
For the past few years, the World Wide Web Consortium (aka W3C) has teased the industry with the potential release of the Web Content Accessibility Guidelines (WCAG) 2.2. This likely update has led to much speculation about the immediate impact on vendors who sell digital products, organizations that purchase digital products, and how quickly people with vision, hearing, mobility, and cognitive challenges will benefit from the update.
So let’s take a few moments to unpack some basics:
Title II and Title III Actions under the Americans with Disabilities Act (ADA) by the Department of Justice (DOJ)
The Department of Justice (DOJ) does not use the WCAG in a Title II or Title III investigation. This lack of a technical standard is reinforced in the DOJ’s 2022 release of Guidance on Web Accessibility and the ADA, which states in part:
The Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.
In short, the WCAG update will not affect the DOJ’s Title II or Title III actions.
Title III Actions by Individual
Individuals can file a Title III lawsuit against places of public accommodation under the ADA. This is a complicated topic with inconsistent rulings across the federal court systems. Our review of sample court cases shows some common characteristics:
- Complaints frequently describe actions that were not able to be accomplished by the individual and demonstrate barriers. While detailed in the description of the steps taken, the complaint may not attempt to outline defects in terms of standards such as specific WCAG success criteria.
- Complaints may cite WCAG 2.0/2.1 Level AA with or without citing specific success criteria.
- When WCAG 2.0/2.1 success criteria are cited, the complaint will favor specific WCAG 2.0 items that are able to be verified easily.
- Litigation tends to be in states with favorable environments, such as additional state laws and federal courts with more lenient interpretations of public accommodation.
Our opinion is the release of WCAG 2.2 will likely not impact private litigation under Title III.
Section 508 of the Rehabilitation Act
Section 508 is a federal law requiring federal agencies and any organization that receives federal funding or provides services on a federal agency’s behalf to build, buy, and maintain accessible information and communication technology unless doing so would pose an undue burden. Section 508 points to WCAG 2.0 Level AA by reference. WCAG 2.1 and any 2.2 release will have no impact.
Section 504 of the Rehabilitation Act
Section 504 prohibits discrimination against individuals with disabilities in programs and activities that receive federal funding. Enforcement of Section 504 is overseen by the Office for Civil Rights (OCR) of the US Department of Education, which investigates complaints of discrimination and ensures that schools and other programs that receive federal funding comply with the law. Like the DOJ, the OCR does not use a specific accessibility standard. As such, the WCAG 2.0, 2.1, and any 2.2 release will have no impact.
The Voluntary Product Accessibility Template (VPAT) is a key document required in procuring digital technologies by the public sector and many private organizations. The VPAT is produced by the Information Technology Industry Council (ITI) and provides a means for vendors to report on a product’s state of accessibility by attesting to WCAG and other standards. Historically ITI has been responsive in incorporating WCAG updates when they reach a recommended state.
Currently, there are four versions of the VPAT form with varying requirements:
- VPAT Rev 508 – Follows Section 508 requirements and does not exceed WCAG 2.0 Level AA. Any WCAG update will not be incorporated without a change to federal legislation.
- VPAT Rev WCAG – Provides for reporting based on WCAG 2.0 Level A/AA/AA and WCAG 2.1 Level A/AA/AA. We expect a WCAG 2.2 update to be incorporated into this version quickly.
- VPAT EU – Provides for EN 301 549, WCAG 2.0 Level A/AA/AA, and WCAG 2.1 Level A/AA/AA reporting. We expect a WCAG 2.2 update to be incorporated into this version quickly.
- VPAT INT (International Edition) – Contains all of the above standards in a single document. We expect a WCAG 2.2 update to be incorporated into this version quickly.
While ITI may be responsive in including any potential WCAG update, organizations currently struggle with interpreting a VPAT. Based on our past experience with the procurement process, it is unlikely that the new WCAG 2.2 updates will affect the purchasing process until all ITI makes the relevant changes and each organization has modified procurement policies and procedures.
WCAG 2.2 Impact
We anticipate that WCAG 2.2 will follow much the same path as the WCAG 2.1 release:
- Progressive stance – Organizations wanting to communicate their commitment to developing or procuring accessible products may adopt the WCAG 2.2 specification as a symbolic gesture in their accessibility policies.
- Ongoing Product development – Many organizations are still struggling to achieve WCAG 2.0 Level AA compliance. WCAG 2.2 will become part of a longer transition plan for this group. For those that have improved their application development processes and made the 2.1 transitions, we anticipate that they will evaluate the new requirements and put them into a roadmap for inclusion. This will not be an immediate action, and development schedules and outside pressure, such as customer requirements (sales), will likely drive the need for incorporation.
- General Procurement – We doubt there will be an impact on the procurement of digital technologies for a few years. Based on the WCAG 2.1 path, purchasers will not require WCAG 2.2 until they feel there is a sufficient pool of products to select from.
- Federal Procurement – Section 508 requires WCAG 2.0 Level AA by reference. This requirement has trickled down from federal procurement to state procurement and other public institutions. Unless an organization has specific needs that would require WCAG 2.1 or a higher standard, we do not see much motivation to include WCAG 2.2 when WCAG 2.1 has not been able to make inroads.
As a final thought, the original intent of the Web Content Accessibility Guidelines (WCAG) was to be a guideline, not a standard. The intent was to promote well-considered and generally agreed-upon descriptions and individual conditions for making web-based content perceivable and usable by people with vision, hearing, mobility, and cognitive challenges. As a principle-based guideline, the success criteria are being applied to documents, mobile applications, and future technologies. In support of this mission to be ever vigilant in pushing the boundaries of accessibility, yes, the juice of the WCAG 2.2 update is worth the squeeze, and we look forward to it reaching a recommendation status.
For those experiencing anxiety over the release, we have tried to show there will be time to address the new WCAG 2.2 success criteria. As we have previously seen, the compliance landscape is complex and slow-moving. But with the continued thoughtful expansion of success criteria by the Web Content Accessibility Guidelines Working Group, we as a society will continue to make a more inclusive environment for hiring, career advancement, and enjoyment of life.
Editor’s note: In advance of Global Accessibility Awareness Day 2023, W3C released an updated draft of WCAG 2.2, as well as revised timeline of the expected release in the Summer of 2023.
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