DOJ Halts Plan to Create Website Accessibility Regulations

Careers sites, applications must still be accessible to candidates with disabilities, advocates say

Roy Maurer By Roy Maurer September 25, 2017
DOJ Halts Plan to Create Website Accessibility Regulations

The U.S. Department of Justice (DOJ) had planned to write regulations for employers to follow to make sure their websites are accessible and readable by people with disabilities, but no more.

The DOJ has moved the regulations under the Americans with Disabilities Act (ADA) to its "inactive list," leaving private employers with an unclear standard for compliance at a time when ADA lawsuits focused on websites—including careers sites—are proliferating.  

ADA website accessibility regulations under Title II (for state and local governments) and Title III (for businesses open to the public) had been planned for 2017 and 2018, respectively, before the DOJ marked them as inactive.

"At first blush, fewer regulations may appear to be a positive development for the business community. However, the lack of official standards ensures that the only guidance for businesses open to the public and state and local governments is the developing and generally unfavorable body of case law in this area," said David Raizman, a shareholder in the Los Angeles office of Ogletree Deakins and a nationally recognized expert on disability rights under the ADA. "Hopes have been dashed that any regulatory effort may provide relief to the business community in the form of a safe harbor, grace period, options for alternatives to website accessibility, or clarity on how strictly a website must comply to avoid liability under the ADA."

The only official standard for website accessibility applies to federal agencies. The standard requires agency websites, including careers pages, portals and applications, to be accessible to people with disabilities and conform to the Website Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA) standard, developed by W3C, an international consortium that develops web standards. As it's the only official standard regarding websites, the standard is the best option for Title II and Title III employers striving for compliance with the ADA, according to legal experts.

"The WCAG 2.0 AA guidelines are the standard that has been incorporated by the DOJ in its settlement agreements with public accommodations," said Kate Gold, a partner in the Los Angeles office of Drinker Biddle & Reath. "For employers who seek to make their websites accessible, adopting [these] guidelines would make sense, even given the lack of a definitive standard to date. Employers would all benefit from having a clear set of rules and definitive guidelines so they know what is expected." 

ADA Lawsuits Ramping Up

Hundreds of lawsuits have been filed across the country in recent years against various private-sector employers, asserting that websites are places of public accommodation and subject to the ADA, which requires that public accommodations be accessible to disabled individuals, Gold said. In 2016 alone, there were about 240 lawsuits alleging website accessibility problems.

In the recent Gil v. Winn-Dixie Stores Inc. case in South Florida, a blind customer sued the grocery chain Winn-Dixie because he could not use his vocalizing software to read the content of the store's website. A federal judge ruled that the lack of website accessibility violated the man's rights under the ADA. The injunction adopted the WCAG 2.0 AA standard as one that Winn-Dixie must meet.

Some plaintiffs' attorneys who have historically targeted public accommodations for website accessibility claims under Title III of the ADA have turned their sights on employers' careers websites, Gold said. "Employers are subject to the prohibitions on discrimination in employment against disabled individuals under Title I of the ADA."

Since plaintiffs can be awarded monetary damages if they win their suits under Title I—compared to wins under Title III, which merely require the employer to fix its website, "this is likely to be an increasing target area for lawsuits," she said.  

Disabled applicants and employees who cannot apply for jobs, access payroll and benefits information, or obtain other information through the employer's website—or where the alternatives that are available are significantly less convenient—may be able to assert claims of disability discrimination or failure to accommodate their disability, she added.

[SHRM members-only how-to policy: How to Handle an Employee's Request for Accommodation]

Ensuring Access for Applicants with Disabilities

The human issue behind all the litigation is that people with disabilities require the same access to careers sites, job portals and applications as anyone else, especially now that technology has almost completely moved the job search and application processes online.

"Many people don't realize that inaccessible technology is preventing people with disabilities from applying for and interviewing for jobs, and causing employers to miss out on potentially great hires," said Jennifer Sheehy, the deputy assistant secretary for the U.S. Department of Labor's Office of Disability Employment Policy (ODEP). "We want employers to know that there are important, and often simple, steps they can take to ensure their virtual doors are open to everyone."

Accessible online recruiting tools equate to better talent acquisition, said Josh Christianson, project director for the Partnership on Employment and Accessible Technology (PEAT), a federally funded initiative promoting the employment, retention and career advancement of people with disabilities through the development of accessible technology.

"If your online job advertisements, applications, screening tools and digital interviewing processes are not accessible to those with disabilities, you are effectively excluding certain individuals from applying for jobs at your company," he said. "This can expose you to legal risk, and more importantly, it limits the pool of talent you'll be able to consider for open positions."

There are 30 million Americans of working age with a disability, and only 20 percent of them are working, said Carol Glazer, president of the National Organization on Disability (NOD), a nonprofit organization that works with employers to help build disability-inclusive workforces.

"You've got a supply and demand mismatch which will need to be fixed if employers want to remain competitive," she said. "Job seekers with disabilities say that what is most important is a perception that a company is welcoming to people with disabilities."

A 2015 PEAT survey of 427 people with disabilities found that 46 percent rated their last experience applying for a job online as "difficult to impossible." Some of the common difficulties job seekers with disabilities experience are:

  • Complex navigation and timeout restrictions.
  • Poor screen contrast.
  • Applications that rely on color, graphics or text embedded with graphics to convey directions or important information.
  • Images that convey information, but do not have alternative text for individuals using screen readers.
  • Applications that cannot be navigated with keystrokes and require using a mouse.
  • Videos or audio instructions that are not closed captioned.
  • CAPTCHA tests—used to determine whether or not the user is human—without an audio option.
  • Lack of information on how to request an accommodation.

"PEAT also interviewed many professionals in the field who identified the need for greater awareness as one of the leading issues, as employers often aren't aware that they may unintentionally be excluding top candidates from consideration," Christianson said. "They also highlighted that accessibility problems often arise during the customization of an off-the-shelf product and [could be] due to inadequate software testing."

Oracle Corporation has worked to make its Taleo recruitment platform—one of the leading talent acquisition and management systems worldwide—more accessible, Christianson said. "Their improvements have included adding alt text on images, meaningful headings, skip links and screen reader-accessible error alerts."

Social media platforms are getting better, too. Both Twitter and Facebook now support accessible images, and Facebook added automatic closed captioning for videos, as well as the ability to add captions for Facebook Live.

"But employers should also understand that they can often significantly improve accessibility issues through simple fixes, such as writing job applications in plain language, describing graphics, using white space to set text apart and providing multiple options for submitting a resume," he said.

Alternative application channels where people can submit applications via e-mail or speak to someone by phone make the hiring process more inclusive, advocates say.

"At a minimum, every employer should communicate their commitment to inclusion through a policy that is prominently and directly linked from the website homepage, and that includes a toll-free telephone number where people with disabilities who are experiencing technical difficulties with the website or mobile applications can call for support," Christianson said. 

NOD's Glazer added that employers need to go beyond technology and think about culture and climate—the accessibility of the company's physical environment, interviewing techniques, branding and onboarding. "Online accessibility can only go so far," she said. "Even done well, it has limitations. The most important way that a company can attract talent with disabilities is not through its recruiting technology but rather through relationships in the communities in which it's hiring. There needs to be a champion in the company whose job it is to cultivate relationships with organizations that deal with job seekers with disabilities and the local vocational rehabilitation system."

In 2016, ODEP and PEAT launched TalentWorks, a free online resource that helps employers and HR professionals improve the accessibility of their recruiting technologies for job seekers with disabilities.

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