- Welcome to The State of Accessibility Podcast from TPGI on LinkedIn Live. I am Mark Miller. And this is my co-host, Dr. David Sloan, Chief Accessibility Officer for TPGI, co-author of "What Every Engineer Should Know About Digital Accessibility," and a user research and accessibility strategy specialist.

- And Mark is the Sales Director for TPGI and a member of W3C's Web Accessibility Initiative, Accessibility Maturity Model Task Force. Mark, this is the eighth podcast we've done so far. I can't believe...

- Eight?

- [David] We've done so many.

- That's pretty good. And the last one, we were live from CSUN, which was a whole lot of fun. And we had a lot of people join us. But this one, David, we're gonna focus on a really important topic. One of the kind of many things that people are focused on and thinking about currently. And that is Title II of the ADA. And the fact that we're approaching one year before the first deadline for conforming with Title II, with a Title II rule in the web content and mobile app accessibility. So it's kind of this, I don't know, reverse anniversary. We've got a year ahead of us to think about the web content and mobile app accessibility. So today, we're gonna talk more about that rule, what it means for the public entities in the U.S., their vendors and, of course, for people with disabilities.

- Yes, I was just gonna say, what is that word Where it's like the opposite of anniversary one year before something's gonna happen?

- I was trying to think of it. Like it feels like anniversary, but I don't wanna say.

- [David] Yeah.

- Anyone listening with suggestions for what that word should be.

- It's the word is a phrase. And the phrase is, you got one year.

- Yes.

- [Mark] That's it.

- So let's start with a... If you want, let's start with a quick recap of ADA Title II, what it requires, and who it applies to.

- Sure, so ADA, the Title II ADA applies to programs and services provided by state and local governments in the United States. And that could include public education, K through 12, higher education, public transportation, voting services, healthcare, social services, courts, emergency services. There are lots of things that are provided by state and local government organizations, either directly or through agencies, that receive funding from state and local government organizations that are covered under ADA Title II. So it's a pretty wide-reaching part of the overall Americans with Disabilities Act. And we've talked before about how the ADA was signed into law in 1990. And that was like less than a year after Tim Berners-Lee first conceived of the worldwide web at the CERN Research Center in Geneva. So when the ADA was written into law, we weren't really thinking about the web as something that was a major place where people could receive those public services and programs. However, the Department of Justice has long held the position that, yes, the ADA applies to the digital world. And you know, over what? 30, 35, 36 years since then, there have been several attempts to create a rule to kind of connect the ADA with the digital world. Finally, last year the role with this title, I had to write it down, Nondiscrimination on the Basis of Disability, Accessibility of Web Information and Services of State and Local Government Entities. That rule was published in April 2024, and kind of came into being in June. And essentially, it added a new subpart to the Title II ADA regulation, which provides some specific requirements for web content and mobile accessibility. And one of the really important things to underline is that this rule that was published last year provides additional clarity on how the ADA applies to digital world. So it wasn't a case of it changed everything. It's just meant here's more detail of what you need to do in order to make sure that your resources meet ADA requirements. Related to that, it doesn't reduce protection for people with disabilities where other applicable laws or regulations might already be in place to provide a higher level of protection. You know, it's kind of almost a backstop. And that's important because there's quite a few existing state laws, local laws. And there's several in development at state level that also place accessibility requirements and covered entities. You know, in states like Colorado, New York, Virginia, there are already requirements that are kind of harmonized. But it's important that this is just... This provides additional technical clarity to the ADA, rather than kind of extending it or changing it in a material fashion.

- The way I look at it is like we were, even before this clarity came out... And if I'm right, David, like Title II of the ADA is really the first time any part of the ADA has been quite this specific in its clarity, which is really interesting. Because it has a direct reference to the WCAG, you know, the WCAG guidelines and some things like that that I don't think we've seen before, right? So the... But the way I look at it is it's more like we've been acting as if in a large way. And this is now putting down kind of what has been going on without the clarity into sort of the clarity and the detail around what it means, so that there's no more sort of like, we're doing this 'cause we think this is what we're supposed to be doing. It's like, no, you're doing that. And you're doing... And here's here's some information that says correct. The way that you guys have been moving forward for the most part is what we had intended. It is correct. And like you said, you know, even down to the point of does this apply to digital content, right? Because in 1990, it wasn't there. It wasn't until I think the mid '90s that I saw a website for the first time in my college. And I didn't understand what it was.

- Yeah, me too.

- Meanwhile, I'm like, why is there like "Beavis and Butt-Head" on this homepage that a professor had created? I'm like, I don't get it. I like think "Beavis and Butt-Head's" fun. You know, but I don't get what this thing is. Meanwhile, I'm getting like AOL desk, disks. And I'm having trouble understanding the difference between like AOL and the globe that brought you out to the web. Like I didn't... It took me a while to get that concept. So it wasn't, I think, until the 2000s that we started even using the web with any extensiveness as a place of public accommodation, to your point, doing the things that we would do in buildings, physical buildings. So going shopping, going to make a deposit in the bank, or apply for a mortgage in a bank, or any number of things like that.

- Yeah, and it... You know, it was a long transition from something that was a technical edge case to something that's core to providing efficient public services. You know, it's now a way to to provide... You save money in providing services online, providing services faster, more quickly, saving people having to travel to a facility. So there's all sorts of reasons why it's become so much more important to public life.

- Well, and I think important's the right word, David, because in many ways, it eliminates a lot of challenges associated with having certain disabilities, right? Like getting to the bank, for example, for somebody who's blind might pose a particular challenge because, and this is before Uber and stuff like that. But if you live in a small town, like getting a taxi, having to arrange all that, like it was quite a great deal of effort. But if you can look up your account balance by logging into your account on the web, right there, the sort of accommodation, it's much easier unless we don't have rules around how that should be made to be accessible. So it's sort of is double frustrating if now this thing that should be making it easier is not accessible and able to be used for the individuals who probably are gonna benefit the greatest from something like being able to access their banking information via the web versus having to walk into, you know, go down into town and walk into a building, or whatever the case is. So it's, I think important was the right word to use.

- Yeah, and that kind of... That's still recognizing the existence of the digital divide that technology-enabled services can make them more accessible to people who have the means to access them. But the ADA isn't necessarily saying all public entities covered must now only provide services online because there's still that unfortunate existence of a digital divide. You know, it's where people with lower income, people with disabilities are more and more likely to, you know, have limited access to tech. But when it's available, it can really help improvement. The other thing I just wanted to go back on, you were talking about how the rule had kind of provided clarity and moved us from, well, we think this is the right thing to do to, okay, this is what the rule requires us to do. In the '80s, so often what people realized they had to do only emerged after a lawsuit and a resolution agreement.

- Right.

- Where the requirements were whatever the court told you to do or whatever you negotiated with the plaintiff in the result of, you know, a situation of digital discrimination on account of inaccessibility. So that was obviously an expensive and, you know, challenging way to get to a point where you understood what you needed to do to meet the law by sort of having been found to have broken the law. So anything that can help people stay out of court, stay away from getting lawyers involved, it's gotta be a good thing. So even though a lot of the lawsuits still are related to Title III and we're talking about Title II today, it gives us something that we can look at and say, okay, this is... This is a DOJ position that people more broadly can look at and say, well, if it's good enough for ADA Title II, then it's probably gonna help us in other situations as well. And we are not lawyers, by the way. So that is not legal advice.

- [Mark] Right.

- Just to be absolutely clear, we're technical, you know, digital accessibility consultants and advocates. And none of this is legal advice.

- Yeah, that's a good point, David. So... So here we are in this position where this is kind of great, right? There's been a step towards more clarity. And to your point, it's in Title II. But it's still sort of clarifying and hopeful for other aspects of the ADA. But when we're thinking about Title II specifically, and I would imagine a lot of people who've tuned into this podcast are like, okay. You know, talk to me about Title II because that's what we're here, that's what we're concerned about. We're a state entity, for example, there's a couple of deadlines that are really important. And we kind of... We kind of were joking around at the top of the episode about, is it an anniversary if it's something like a deadline coming up in a year? So talk to me about those deadlines because there is a deadline coming up. Both of 'em are April 24th. The first deadline is 2026. And the second deadline is 2027. So what are we looking at with those two deadlines?

- Right, so the 2026 deadline is for organizations that have populations of 50,000 people or more. So given that the ADA Title II applies to state and local government entities, they kind of serve a defined geographical or administrative area. And based on the population that's served, that defines what the deadline by which you need to meet the accessibility requirements. And that the logic there to have those two deadlines was those smaller state or local government entities are probably less well-equipped to remediate their digital resources, you know, quickly compared to a larger organization. You know, we can... The rule went through a lot of public review, internal revision. So the logic has been tested and that's what they came up with. And it does give everyone a bit of time. You know, that's just over a year for the larger organizations. But that was essentially the driver behind having two deadlines. You know, recognizing that smaller entities may have more limited resources in terms of personnel or budget to address, you know, take the necessary steps to meet the requirements.

- Got it, and then... And so, 2027 is really the same requirement.

- Yeah.

- But for those organizations that are smaller, that are less than 50,000 people.

- Right.

- [Mark] Makes total sense.

- So we've talked about this wonderful clarity that we have now, and what an important step that is. What does that mean for technical requirements for the rule?

- So the rule applies to web content and mobile apps. And web content means HTML webpages, including embedded audio and video, and web applications as well. Also, digital documents are what the ADA Title II rule refers to conventional electronic documents. I'm not sure what an unconventional electronic document is, but nevermind. So we're talking about things like Word documents, PowerPoint, PDFs, that kind of thing. Familiar formats that are used to provide information as part of a public program or service provided by a public entity. So that's what the rule specifically addresses. And in terms of the technical requirement, it requires those covered digital entities to meet WCAG Level AA, WAC 2.1 Level AA. So this is an interesting point of conversation because we are currently at level 2.2 of the Web Content Accessibility Guidelines. However, the rule was published after WACG 2.2 was published, but still refers to Level 2.1, or version 2.1, essentially because the Department of Justice felt that WCAG 2.2 was still too recent for people to be familiar with enough to be able to adopt it. Again...

- [Mark] That's not...

- It's not stopping anybody from doing 2.2.

- Absolutely, absolutely. That's a really important point. You don't... It doesn't mean that you're not allowed to meet 2.2. It just means that the minimum requirement is 2.1 Level AA.

- And as we move from one version to the next, it tends to be an additive process. So meeting 2.2 is a step beyond meeting 2.1. It's not like an instead of that might get you in in some trouble. You're meeting 2.1, and then a few additional items that are included in 2.2.

- Yeah.

- [Mark] Is that right?

- Yeah, yeah.

- [Mark] Okay.

- So yeah, and one of the really good things about the way that the Department of Justice does its rulemaking process is that there's a lot of published information about how they, how they responded to feedback on the proposed rule, or the draft rule. You know, they draft a rule that they put out for public comment. And then when they publish the final rule, they talk about how they reacted to the feedback they received. And when they issued the Notice of Proposed Rulemaking, essentially the draft rule, there were some things in there that aren't in the final rule. And people said, no, this is not a good idea. Some of the exemptions that we'll talk about, or some of the exemptions that didn't make it that were removed from the final rule, people said this is not a good idea to have these as exemptions, particularly things relating to educational content. But all of that discussion is publicly available. So you can go and read why the Department Justice might have said some people said we should change it to be the latest version of WCAG. And the reply was can't do that. We have to reference a specific standard. We can't reference.

- Right.

- Something kind of obliquely, say, whichever the latest version is because, you know, it's this... There's this... They're just not allowed to do that. So that's why they had to reference a specific version of WCAG. So it means it's not future-proofed and that the rule would have to be updated if... And let's say, WCAG 3 came out. Then the rule would have to be updated to adopt WCAG 3 as a standard. And that can lead to problems. We've seen that before where rules and laws reference a version of WCAG that was then replaced. And then the rules still references an old version. But back to your point, there's nothing to stop you going above and beyond. But I appreciate-

- You as an organization are essentially making a decision to "future-proof" yourself, in air quotes, there by-

- Yeah.

- It's making an assumption that at some point, a ruling like this is gonna be updated. And it's gonna go to... It's gonna reference a more, a more recent version, right? Maybe 2.2 is referenced when 3.0 comes out, or something like that. But you can count on some pace of moving into future versions of the guidelines. You mentioned the exemptions, right? So what about the exemptions, right? ADA has longstanding exemptions, fundamental alterations, and undue burden, right, which apply to the web and mobile rule. But you've gotta, I guess, be careful about how you use those and interpret those. What... You know, what do you have to think about when it comes to that? And what other exemption should we be aware of?

- Yeah, so the fundamental alteration and undue burden are two kinda core principles of the ADA. And other disability laws of the European Accessibility Act has something very similar. And it's essentially saying that if in implementing accessibility requirements you would materially change the functionality or the purpose of whatever it is you're trying to make accessible, then you don't have to do it. You know, that it stops people interpreting the requirements in a way that is, really changes the purpose of the service, or the program, or whatever it is they're trying to make accessible. And it helps direct efforts where they're going to have the most positive impact with people with disabilities. The undue burden one is where an organization might say, we want to meet the requirements, but it's gonna cost us so much. Or administratively, it's gonna require, put such a burden on us that we don't think we can justify that effort. And again, that's okay. It's saying that we're... You know, it's recognizing that resources are not unlimited. And directing those resources to where they have most positive impact in people with disabilities, and where you're not wasting effort trying to make something accessible that may be difficult or impossible to do so, it just... They're two exemp, two principles that help guide efforts where they have most positive impact. And they also apply to the digital assets covered by the Title II rule. It's probably less, you know, compared to trying to change a building that's built 200 years ago to try and make it accessible versus updating a website, remediating a website to remove accessibility barriers. In the vast majority of cases, fixing digital stuff is easier than trying to renovate an old castle or something to make it accessible. So these exemptions are probably less applicable in the digital world. But there will be cases where it's because of the nature of the digital resource, or just how it was built, that it may well be just really, really difficult.

- I remember back I the Flash days. That was when...

- Right.

- When there were just certain things written in Flash that were next to impossible to make accessible. And the answer was, well, you need to rewrite this in something more accessible, which I think HTML 5 came about, and a few other things came about where that was possible. But the idea that you would have to rip out an entire aspect of your code base and rewrite it, you know, could cause problems. I also think like people must be listening to this and thinking, okay, that's great. But how do I really know I fall under like fundamental alteration or undue burden, right? Undue burden doesn't mean like it's a little hard. It means it's gonna... It's gonna break something, or it may kinda sink the ship, or there's a big deal here. And fundamental alteration doesn't mean that things won't change slightly. It means that they change fundamentally. So how do you make those judgements? And I think this is another we're not lawyers, right?

- Exactly.

- Like we can make you aware of this, but this is really for your counsel to make a judgment on in terms of whether or not something might be undue burden or fundamental alteration. And it's up to them to make that call, and be confident that they can defend, and all that kind of stuff. So if you're wondering how you navigate those exemptions, that's how you navigate those exemptions, in my opinion, is working with counsel to make sure that, you know, you're looking to them for their interpretation of it and whether or not...

- Exactly, yeah. And the ADA has specific definitions of what those exemption situations are and what evidence you'd need to provide. And essentially, it's like, you know, do you wanna fix stuff? Or do you want to engage lawyers in trying to defend why you shouldn't fix stuff? Usually, fixing stuff is the better way to go. And it's certainly the better way to go for people with disabilities. But yeah, there are some specific types of digital content that the rule has exemptions for. So archived web content, and there's a specific definition of what archived means. But essentially, something that's... You know, was created in the past, and is labeled as an archive, and something that's generally not going to be changed, and is kind of old records, or whatever. Preexisting digital documents, those conventional electronic documents we talked about.

- Yeah, I wouldn't just stay on archive web content, and give you an example, and just to see if I'm following that right. Like, oftentimes, what I see is a lot of organizations will come to us. And they have a whole bunch of PDFs that need to be made accessible. But when you look across those PDFs, first of all, there's probably some of them that they can sort of get rid of that don't even need to be archived. But to the point that you made, there's a lot of 'em that somebody may want to go back and reference for some reason at some point. But they're no longer currently relevant. Like they were intended for a time in the past. Like think of an annual report, you know, that's four years old, or something like that. And so, those can go into like an archive versus being kinda out on the public website, or wherever they're stored as current material. Would that be considered archived web content in that case? Is that...

- It sounds like it, yes, if it's stored in a part of the website that's clearly identified as an archive.

- Okay.

- [David] Of content.

- And something you said there is... You know, when it emphasized that it's... If somebody wants to access that content and they have accessibility needs, you still have an obligation to provide the content in an accessible format under the ADA. It's just that the rule, and web, and mobile app accessibility has those exemptions. But the ADA itself doesn't mean that you can say, "No, we're not gonna provide you with that information." You know, you still have to provide, you know, provide that information when somebody asks for it in an accessible format. And it might be an alternative version.

- It may not fix all of those piles and piles of, in this example, documents. But when somebody says, "Hey, yeah. I do wanna look at that," you know, 2020 annual report at that... And I have... You know, I use a screen reader to access content. Now, you might need to go back and look at that 2020 annual reporting

- Right.

- [Mark] Accessible.

- Yeah, and these exemptions are all about, again, avoiding organizations that are covered under Title II to spend all their time focusing on stuff that people are less likely to need to access compared to, let's say, the state website, or something that is a higher priority. So it's all about focusing efforts first on the most high priority stuff. And then, that's where the list of exempted content, and just to complete that list that included content posted by a third-party that isn't engaged by the public entity to provide content. So, for example, caught a comment provided in a news article or a social media post, that wouldn't be covered by the rule. Individualized password-protected content, which is a little bit more controversial because that could be something like a health record, which is really important for somebody to access in an accessible way. But nevertheless, that was included in the list of exemptions, and preexisting social media content posted by a public entity. So the rule is essentially saying that you don't have to go back and remediate all your Facebook posts from 2015, 2016. But if somebody wanted to read it and said, "This is an important part of the service you're providing," then we'd be obliged to-

- You might have to do it-

- [David] To help them.

- But it's not something that you need to prioritize. And again, it's the focusing efforts and where, where there's highest priority.

- So... And that's good news. Like people have been posting on Facebook and other things for a long time. So having to go back and make all... And also, they're done by, sometimes by third-party people or people who are not around. Like the difficulty around that could... It would be high, I would imagine. So some of the other exemptions, so one of them talks about like an alternative version, right? So when a conforming alternative version, according to the way that WACG defined it, is available instead of a single version that conforms to WACG 2.0. 2.1, I'm sorry, at Level AA. So in other words, it's okay under Title III of the ADA to have an alternative version out there that is conforming to the guidelines. You don't necessarily have to make that, we'll call it the existing version or a single version, both usable by people without disabilities and people with disabilities. Is that what that is saying?

- In very, very specific-

- Struggle with this one, to be honest with you.

- Yeah, in very specific circumstances, it's... You know, it's one of these things that in the vast majority of cases, remediating a single version of a website or app to be conformant is the required and appropriate way to go. But there may be specific situations where it's just not technically possible to meet the accessibility requirements. Then you can provide a conforming alternative version. But again, it's not... This is not to be seen as an easy get out clause to avoid remediating a website that's in very specific, rare circumstances that this exemption might apply. And similarly, the other exemption where nonconformance with WCAG does not materially affect access to content, functionality, or participation for people with disabilities. This one might be a little bit more common where you might be able to argue that the existence of a, you know, of where you don't meet WACG. Let's say there's a decorative image missing an alt attribute in the footer of a webpage. Yeah, technically it's non-conforming. But does it stop anybody from accessing information, or functionality, or being able to perform tasks? If it doesn't, then you might be able to say, well, we can claim that exemption.

- So it's let's not get too picky about this. The spirit is that folks need access to this content.

- Right.

- We don't wanna beat people up over a little... Which I think is important, right? Because the websites, mobile application, all these things, they have bugs anyways, right, that affect every-

- Yeah, yeah.

- And sometimes, an accessibility issue is a bug that's affecting people with disabilities. But if people are still able to access, do we really wanna punish somebody too deeply for that? Or is it just like, oh, yeah. Let's go fix this like we would fix any other bug, or whatever the case is. Or maybe we don't need to for some reason, but-

- Yeah.

- But I kinda like it because it says, yes, the guidelines are important. But let's remember that they're guidelines. What's really important here is this concept of everybody being able to access the content.

- Yeah, and it kinda recognizes that not all accessibility bugs are equal, you know, for a given success criteria. Even at level A, the severity of the issue in terms of its impact on people with disabilities might vary depending on where the issue is in a website, in a workflow, task flow. So again, we're not saying that this is a license to just ignore a bunch of issues you think are not important, but more prioritize the ones that impede or prevent people from being able to do stuff. And then the ones that it's clear from where they are on the webpage or in the app, that they're unlikely to have any material impact, then, they become low priority.

- It does have a material impact.

- Right, yeah.

- So David, we're actually coming up on the half hour, which is sort of our unspoken timeframe for these podcasts is 30 minutes. There's a ton more that we could talk about here, right? And we just don't... You know, there's never enough time. So is there anything like really important in the next minute or two that you think we should bring across before we kind of wrap things up?

- Well, I think it's worth just noting, I feel like we're gonna have to come back and talk again about the strategy to implement with, for organizations to adopt, to be ready to meet the deadline. And this is a, you know, it's a strategy that we are familiar with more broadly, as an approach to take to improve accessibility of your digital assets. But I did want to mention that, you know, we've been talking about ADA's applicability to public entities. And it's public entities that are on the hook to meet these requirements. But private organizations who have public entities as customers of their digital products, tools, services may think, well, we don't need to worry about this. But as a supplier to a public entity that's subject to ADA Title II's requirements, you have an opportunity to help your customer meet their obligations by providing tools and services that also meet WCAG 2.1 AA. And even though the law might not apply to you, you know, you can go a long way to, you know, making your products and services more attractive to public entities.

- That's good point.

- By showing evidence that they meet the Title II requirements. And if you don't do it, somebody else is gonna be doing it. So even if you're a private entity and you think, I don't need to worry about this, there's an opportunity there for you. And I know that there's... One of the criticisms of the Title II rule is that it puts all of the responsibility on the public entities and not on their partners, their vendors. And I guess we're kinda relying on market forces to encourage the vendors to go do a little bit more than maybe they've been doing so far to help entities meet their requirements.

- Yeah, that's a really... That's a really good point, right? Don't just think if you're, you have to be a public entity for this to have an effect that.

- Exactly, yeah.

- [Mark] Entities.

- Think about that as well. All right.

- So yeah, I think, you know, with just over one year until the first deadline for organizations that are covered by ADA Title II, there's definitely still time to prepare, and still still time for us to talk more maybe in an upcoming podcast. I know it's not gonna be the next one because we've got a special guest talking about a trip to Antarctica, I believe. So I'm looking forward to that one.

- Yeah, that'll be a good one. Well, great discussion, David. And I think you're right. There's still time to prepare. But I also think you should probably start preparing right now. Like a year is not as long as you might think to start addressing these things and get where you're gonna need to be to hit that first deadline if you're over 50,000 employees. Well, now you know the state of accessibility. I am Mark Miller, thanking David Sloan, and reminding you that the state of accessibility is always changing. So please help us affect change.