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Townships have been increasing information accessibility by providing information online through websites and social media platforms, including Facebook, Twitter, Instagram, Pinterest, LinkedIn, and YouTube. In 2015, the Legislature amended the Freedom of Information Act to account for the application of technology in government transparency. The added efficiency and outreach achieved with forms of online media has numerous positive benefits. In the process of using online media, local units of governments may forget to ensure the information provided through those means are available to all members of the public. In recent years, the Department of Justice (“DOJ”) has reviewed the impact online media has had by excluding disabled individuals in violation of the Americans with Disabilities Act (“ADA”). This E-Letter explores the ADA’s applicability to township websites and other online media, the current standards of accessibility that apply, and current trends that governmental entities are taking to offer more accessible electronic media.

THE ADA REQUIRES DISABLED INDIVIDUALS TO HAVE FULL AND EQUAL ACCESS TO WEBSITES AND OTHER ELECTRONIC MEDIA

As the use of technology continues to grow, more and more public members rely on websites and other online media to access public information. Townships have the ability to post township board meeting agendas, packets, and minutes online. Planning Commission meetings can be live-streamed on a township’s website. The public can use a township’s website to verify code compliance when a township’s code of ordinances is fully integrated online with search functions and hyperlinks to relevant forms and definitions.  For many, the accessibility of local township information is efficient and effortless. But, what about a blind individual attempting to access a township’s minutes or a deaf individual attempting to play recordings of the latest meeting? These individuals may be using additional software or accessibility features on their computers and internet browsers that require township media to have a higher standard of accessibility than what is currently deployed by many townships.

The ADA is designed to prohibit, among other things, discrimination against persons with physical and/or cognitive disabilities in state and local governmental programs and services (Title II). The ADA does not specifically identify online accessibility, but case law and guidance from the DOJ indicates that online media must comply with the ADA. In the DOJ’s enforcement efforts under the ADA, it has considered municipal websites to be state and local governmental programs and services within the meaning of Title II of the ADA. Title II of the ADA requires public entities to make their programs, services, and activities accessible to those with disabilities. Wherever necessary, municipalities must make reasonable accommodations to ensure persons of all abilities can fully participate in the programs and services of the municipality.  Under Title II of the ADA, disabled individuals must have full and equal access to goods and services offered through websites, social media, and mobile applications.

THE DOJ HAS BEEN MANDATING ACCESSIBILITY REQUIREMENTS FOR WEBSITES

In recent years, the DOJ and courts around the United States have analyzed whether online media is required to comply with the ADA. The DOJ and courts have routinely found that the ADA does apply, and in some cases, non-compliance has resulted in significant financial exposure.

In 2010, the DOJ published a final binding rule on how websites and related electronic media must satisfy the ADA. The rule was set to go into effect in January 2018.  In December 2017, the DOJ withdrew its rule before compliance was necessary. Despite no binding rule, the DOJ continued regulatory efforts to require compliance through case settlements.

Michigan townships are not shielded from such accessibility requirements or DOJ enforcement. In fact, the DOJ has entered into settlement agreements with at least two different governmental units in Michigan related to ADA compliance and web-based services. These municipalities entered into settlements with the DOJ mandating that they “[e]stablish, implement, and post online a policy that its web pages will be accessible and create a process for implementation.”

Cases also proceeded through the U.S. judicial system against private and public entities requiring accessibility for disabled individuals. Both DOJ enforcement and case decisions resulted in use of the accessibility standard identified as the Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”), which are further explained below.

CURRENT TRENDS SUGGEST COMPLIANCE WITH WEB CONTENT ACCESSIBILITY GUIDELINES 2.0 WILL MEET ADA REQUIREMENTS

Web Content Accessibility Guidelines (“WCAG”) were developed to create a universal set of standards for website developers. WCAG 2.0 was made available in December 2008. The standards were created by the World Wide Web Consortium, an international non-governmental organization committed to ensuring technological access for persons of all abilities. The World Wide Web Consortium was formed in 1994. It is comprised of member organizations, who are website developers, coders, businesses, non-profits, universities, governmental entities, and individuals. with the group’s mission is to “lead the World Wide Web to its full potential by developing protocols and guidelines that ensure the long-term growth of the Web.”  They continually work on improving standards of technological accessibility. The current accessibility standard agreed to among its members is WCAG 2.1.

Surprisingly, WCAG 2.0 is not promulgated by any federal agency or state agency. But, the DOJ has been comfortable dictating that accessibility of a government website must at least meet WCAG 2.0.  The DOJ has mandated compliance with WCAG 2.0 by inclusion of the standards in consent judgments with local governments. In a series of identical settlements in 2015 between the DOJ and municipal governments in Illinois, Nevada, South Carolina, Florida, New Mexico, and Utah, the DOJ required that “the [municipality] shall ensure that its employment opportunities website and job applications contained therein conform to, at a minimum, the [WCAG 2.0].” Similarly, the DOJ mandated that the University of California at Berkeley ensure that all educational materials on its website are compliant with WCAG 2.0. That same mandate was enforced against H & R Block in 2014.

COURTS ARE ALSO RELYING ON WCAG 2.0 AS A REASONABLE STANDARD FOR ACCESSIBILITY UNDER THE ADA

Although less consistent, judges have also imposed WCAG 2.0 on entities who allegedly failed to meet the accessibility requirements of the ADA. For example, in the first case of its kind to go to trial, a federal district Judge in Florida required that the supermarket chain Winn-Dixie must conform to WCAG 2.0’s standards. See Gil v Winn-Dixie Stores, Inc, 257 F Supp 3d 1340, 1350. In that case, the plaintiff was a man with visual impairments who required a screen reader to navigate Winn-Dixie’s website. While his screen reader worked on hundreds of other websites, it did not work on Winn-Dixie’s website. As a result, the federal district judge ruled in the plaintiff’s favor and imposed the WCAG 2.0 standards. The judge in that case pointed to regulations recently promulgated by the United States Access Board that mandate WCAG 2.0 compliance for all information technology put out by the federal government, any of its agencies, or entities receiving federal funds as the basis to impose WCAG 2.0 on Winn-Dixie. While Winn-Dixie is not regulated by that Access Board rule, the judge was persuaded that a standard adopted for the federal government’s information was a sufficient standard for a private business to comply with. Winn-Dixie has filed an appeal, primarily arguing that the judgment imposing WCAG 2.0 creates an impossibility as few if any websites can comply.

The plaintiff’s claim in the Winn-Dixie case—that assistive technology for vision impairments did not work on a particular website—represents the most common claim in these kinds of cases. The other prevalent complaint brought in such cases is that there is no text equivalent or captioning for videos on a website that would allow those with hearing impairments to fully understand the contents of the webpage.

TOWNSHIPS SHOULD COMPLY WITH WCAG STANDARDS

Absent a final rule from the DOJ or further interpretation of the ADA clarifying the accessibility requirements, townships are clearly subject to Title II of the ADA and thus, should adjust websites and other online media to conform with WCAG standards. Though there is no ADA regulation mandating municipal governments comply with WCAG standards, the DOJ has used it as a basis in settlements. Similarly, Winn-Dixie demonstrates that judges may feel free to impose the standard even without clear federal regulations supporting the decision. Although the DOJ’s past settlements and prior court decisions required compliance with WCAG 2.0, the most recent version of the standards is WCAG 2.1. To view the entire WCAG 2.1 standard, visit https://www.w3.org/TR/WCAG21/.

Basic compliance with WCAG 2.1 includes, but is not exclusive to, the following:

• Information is “perceivable” with resizable and high contrast text that is easy to read.
• Any photos should have text descriptions and captions so that assistive technology can operate effectively.
• Videos should have a text alternative in the form of captioning.
• The website should be functionable through use of a keyboard, and not depend solely on the use of a mouse or cursor.
• Navigation across pages should be consistent, predictable, and instructions are explict whenever users are required to input information.
• Finally, ensuring that your technology provides a robust experience to all users means that your website and mobile applications should be able to be reliably interpreted by users of all abilities and be compatible with assistive technologies.

The current trends of the DOJ and case decisions suggest that compliance with WCAG 2.1 should insulate townships from challenges from the ADA but understand this is only based on current trends. Unfortunately, given the lack of a final binding rule by the DOJ, there is no guarantee WCAG compliance equates to compliance with the ADA. Even so, the benefit of complying with WCAG 2.1 is that the township’s website becomes more accessible to the public, which is a great advantage for the township and its public members.

Compliance with the ADA must remain at the forefront for townships and their service providers. Governmental entities should take extra care to review their existing and future technology to ensure any websites are brought into compliance with applicable law, including the ADA. For starters, there are automated tools that are available on the Internet, which will do an electronic audit of the website and determine potential accessibility issues under WCAG 2.1. These tests can provide a baseline as to accessibility for a website, but it is not a perfect solution.

There is no automated tool on the market that will currently verify all issues with compliance. A human audit through each feature of a website or other electronic media is required to verify compliance. Further complicating the matter, accessibility is a constant goal that must be maintained as information is uploaded to the website. Ultimately, greater accessibility of a township website and other online media not only complies with the ADA, but it creates greater government transparency and accessibility.

— Christopher Patterson

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.

Copyright © 2018 Fahey Schultz Burzych Rhodes PLC