eAccessibility unpacked…

A distinct advantage of working with us is that we’ve got your back when it comes to ensuring that every product produced complies with legal expectations regarding people living with disabilities.

Our team includes the wisdom to advise you what legislation expectations apply to your situation, and how to mitigate any corresponding legal risk.

Not that mitigating legal risk is the only reason to have accessible documents on your radar: you’ll also reach a larger audience, drive down customer support costs, improve search optimization, enhance your workflows, strengthen your employee and public relations … and feel good doing the right thing.

However, here’s the 101 on why we urge you to consider investing in our services to turn excellent products into products that are excellent for everyone.

What is WCAG 2.0?

WCAG is the de facto global standard for measuring the accessibility of websites, apps, and documents. The latest version of WCAG (Web Content Accessibility Guidelines) that regulations cite is WCAG 2.0. Almost every government in the world that has regulations that apply to public or private sector organizations use WCAG to gauge compliance.

To reach Level A compliance, a product must comply with 25 Level A success criteria. To reach Level AA compliance, a product must comply with the Level A success criteria as well as the 13 Level AA success criteria. (FYI, WCAG also has a third level: to reach Level AAA compliance, a product must comply with the Level A and AA success criteria as well as the 23 Level AAA success criteria. However, Level AAA sites are rare special cases: no legislation calls for Level AAA compliance.)

What is WCAG 2.1?

WCAG 2.1 has now been released. WCAG 2.1 is made up of all of the existing WCAG 2.0, plus 17 additional success criteria (5 more Level A, 7 more Level AA, and 5 more Level AAA). The new success criteria mainly address mobile and touch devices and other evolution of technology since 2008 when WCAG 2.0 was released. It also addresses cognitive challenges better than WCAG 2.0 did. There is also a WCAG 3.0 in the works, however, it is at least a decade away!

What are CPWA, CPACC, and WAS certifications and why should I care?

CPWA, CPACC, and WAS certifications are issued by the IAAP (International Association of Accessibility Professionals) in order to certify professionals who have proven their knowledge and experience of accessibility principles. IAAP certifications are the World’s only certifications for accessibility professionals. IAAP is a division of G3ICT (who advises governments worldwide on accessible ICT). (Full disclosure: David is an International Advisor for G3ICT and a member of the Global Council of IAAP). David Berman is one of perhaps 20, 40, and 100 people globally to hold CPWA, WAS, and CPACC certification respectively (in fact, he was the first person in Canada to take the exam!).

What is the law in Canada?

The province of Ontario was the first region in the world to regulate WCAG 2.0 compliance for the private sector, making it a bellwether for regulatory compliance worldwide. AODA (Accessibility for Ontarians with Disabilities Act, 2005) was enacted in 2005, followed by precise regulations defined within IASR 191/11 that include precise prescriptions as to what type of organizations are obligated to make their electronic products compliant. The regulations specify what type of web content needs to comply with WCAG 2.0, by what deadlines, and to what level.

Above and beyond AODA, organizations in Ontario are also subject to the broader and less well-defined obligations under Canada’s federal Canadian Human Rights Act. As well, once federal Bill C-81 becomes a law, some Ontario-based organizations will also have obligations to comply under that law.

Outside of Ontario, various provinces are in the process of developing their own provincial acts and regulations (such as the Accessibility for Manitobans Act (AMA) and the British Columbia Accessibility Act (Bill M 219, 2018)).

Meanwhile, all federal government departments and agencies must abide by the Treasury Board of Canada accessibility policy. Federal-regulated organizations (such as national transportation carriers and broadcasters) also have specific additional accessibility obligations.

What is the law in the USA? What is Section 508 and ADA?

The Americans with Disabilities (ADA) was passed in 1991, before the Internet was ubiquitous, and so the ADA does not mention eAccessibility directly. This ambiguity has resulted in many multi-million-dollar lawsuits in the U.S. regarding accessible websites, apps, and documents.

Meanwhile, the U.S. has had very precise regulations in place for eAccessibility for their federal government longer than anyone. In 1998, amendments to Section 508 of the Rehabilitation Act of 1973 introduced specific technical rules that websites for federal government agencies and federally-funded organizations must comply with … a world first. In 2017, the U.S. Access Board updated Section 508 to reference WCAG 2.0, as of January 2018.

Meanwhile, the U.S. Department of Justice has repeatedly committed to releasing rulings regarding ADA Title II organizations (originally by the end of 2016) and for Title III organizations (by the end of 2018). Government and government-funded organizations (not just federal government, but local government as well) fall under Title II, while most US private sector organizations fall under Title III. To unpack this further, in July 2010 the Department of Justice (DOJ) released a notice of proposed rulemaking for web accessibility under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. Section 12101. Until the DOJ fully provides this clarity, lawsuits continue to be decided case-by-case in the courts.

The American Department of Justice has identified WCAG 2.0 as their intended measuring stick for eAccessibility with respect to the Americans with Disabilities Act (ADA). Although, the situation remains ambiguous, if you were to interview David Berman or any of the other 20 or so accessibility experts who hold the CPWA certification for eAccessibility (issued by Washington’s IAAP), we predict that they would all say that the DOJ will name WCAG as the measuring stick.

Today in the U.S., judges ruling on litigation regarding the private sector or non-government organizations typically end up using WCAG (as well as the subset PDF/UA for PDF files) and Section 508 that the U.S. government applies to its own programs (the original version or the refreshed version) as the arbiter of whether a product is accessible enough. Some will cite the original Section 508. Some will cite the refreshed Section 508 (which points to WCAG 2.0 Level AA). Still others may cite WCAG 2.0 Level A (which is generally stronger than the original Section 508, but weaker than WCAG 2.0 Level AA). Section 504, which is about educational institutions, and various state laws also often come to bear.

Whatever the future rulemaking, companies in the U.S. are already prohibited from discriminating against persons living with disabilities, and denying them access to services on the basis of their disability.

What is the law in Europe?

In 2018, every member state of the EU passed legislation that meets the EU’s WAD, which demands that every EU member state has legislation insisting that government and government-funded operations comply with the EU’s EN 301 549. Each country has varying definitions of what organizations in their country must comply, as well as varying interpretations of the common deadlines. As well, many countries (such as France, Germany, Norway, Sweden, and the UK), already had legislation in place that already exceeded the EU-wide requirements in various ways.

EN 301 549 is an EU regulation that defines a minimum level of online accessibility. As of 2018, EN 301 549 defines online accessibility as needing to conform with both technical accessibility and functional accessibility requirements. The technical accessibility requirement is WCAG 2.1 Level AA. Both the technical and the functional requirements are summarized in a VPAT report.

Requirements for the private sector are also being contemplated by the EU, in the European Accessibility Act that’s in the works.

Around the world

Regulations vary from country to country. Every country or region in the world that does have web content accessibility legislation refers to WCAG. Some refer to WCAG 2.0 Level A, some to WCAG 2.0 Level AA, some to WCAG 2.1 Level AA, while others remain vague. Most countries don’t have legislation at all, and when they do the legislation typically only applies to public-facing government websites (or sometimes to government-funded organizations or projects). However, the situation is rapidly evolving. The areas that do have laws that includes precise regulations that apply to some or all of the private sector are Ontario (Level A now, Level AA by 2021), Israel (Level AA now), and Norway (Level AA now). How such laws apply to (and the degree to which they are enforced upon) organizations headquartered outside that region also vary from jurisdiction to jurisdiction.

Therefore, the safest move for a global organizations is often to carefully consider where and how they operate in each jurisdiction, and then either conform to WCAG 2.0 or 2.1 Level AA immediately … or perhaps pursue just Level A in the short term with Level AA as a best practice. We passionately stay on top of this broad topic so that you can trust us to advise you on which details and changes matter to your strategy.

Jurisdictions whose laws include precise regulations that apply to some or all of the private sector include: Ontario (Level A, Level AA by 2021), Australia (Level AA now) Israel (Level AA now), and Norway (Level AA now).

What is WCAG-EM?

Since 2015, the gold standard for WCAG auditing and reporting is an evaluation methodology called “WCAG-EM”. (David helped perfect this standard in his role as Invited Expert to the W3C, the publishers of the WCAG standards.) Consequently, those in the industry who are serious about the strength of their third-party validation of regulatory compliance have a policy of requesting that their accessibility audits and reporting meet or exceed the W3C’s formal WCAG-EM standard. We therefore recommend, in alignment with your organization’s commitments to governance standards, that you insist upon this standard as well.

How many people are we talking about?

According to an opinion piece in The New York Times, roughly one in five Americans live with a disability. This translates to about 56 million people in the United States. Globally, estimates suggest approximately a billion people live with a substantial disability. And almost everyone experiences temporary disabilities from time to time.

How does the ADA currently define ‘disability’?

Under the ADA, the legal term “disability” means, with respect to an individual “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.”

Is doing all this going to make our design worse for the mainstream user?

Communications teams are often understandably concerned that complying with accessibility standards could result in products that disappoint typical users. Design teams fear that their product will lose its drama and intrigue, and their fear is understandable: we’ve seen horrible results when non-designer auditors dictate horrible compromises on an excellent product.

Our approach is refreshingly different: as a firm that has specialized in inclusive design for three decades, we’ve developed a library of techniques that allow us to promise you compliance with every applicable WCAG Level A and Level AA success criterion in a way that will enhance the user experience and SEO for your entire audience. We call this “No Tradeoffs” Inclusive Design™: it ensures that the UX (user experience) for all users need not be compromised by the accommodations for those living with disabilities. Rather, it will improve the design for all, without compromising your deadlines.