Response to the Department of Justice ANPRM

The Department of Justice has asked for comments on their proposal to apply the ADA to the web (Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations). The following is the comment I plan to submit relating to the first three questions.

I welcome thoughts or comments about this. Please use my comment form for that purpose. Thanks.


I have been a consultant in accessibility ( since I retired from IBM in 2000. I was in the Mathematics Department at IBM Watson Research Center for most of my 37 years at IBM working with a blind colleague, Dr. Jesse Wright. Around the birth of the IBM PC, Jesse and I had the idea of a talking computer – an idea that eventually became IBM Screen Reader, one of the first audio access systems for access to computing for blind people. I joined the IBM Accessibility Center in 1996 where I helped to establish the IBM Accessibility Guidelines (before 508 or WCAG 1.0) and an IBM Accessibility Policy. In 1999 I was vice-chair of the Section 508 Advisory Committee and was chair of the Software Subcommittee.

As a consultant now I spend most of my time helping companies build accessible web sites. Typically I review those sites and report on what needs to be done to improve and/or achieve accessibility.  (By the way, needs such an assessment.)

Some of those reviews have been public. I was the auditor of for the New York Attorney General’s Office and I continue to evaluate their site each year even though there is no longer a legal requirement to do so. I was the expert witness for The National Federation of the Blind (NFB) in their suit against Target and I have worked with Amazon in their agreement with the NFB. I have worked with many clients in publishing, telecommunications, ecommerce, financials, education, government and entertainment. I think I know better than most the state of web sites, how to evaluate them and how they should be judged and fixed.

From my perspective, the first three questions addressing “what guidelines or standards should be used to judge or measure accessibility” are the most important. What I have to say here addresses these.

Question 1. Should the Department adopt the WCAG 2.0's ``Level AA Success Criteria'' as its standard for Web site accessibility for entities covered by titles II and III of the ADA? Is there any reason why the Department should consider adopting another success criteria level of the WCAG 2.0? Please explain your answer.

Question 2. Should the Department adopt the section 508 standards instead of the WCAG guidelines as its standard for Web site accessibility under titles II and III of the ADA? Is there a difference in compliance burdens and costs between the two standards? Please explain your answer.

Question 3. How should the Department address the ongoing changes to WCAG and section 508 standards? Should covered entities be given the option to comply with the latest requirements?

Which Guidelines to Reference?

Asking the question that way makes it really easy to answer. There is only one option available, the Web Content Accessibility Guidelines Version 2.0:

In specifying criteria for accessibility, the Department of Justice should reference the Web Content Accessibility Guidelines, Version 2.0,


Those guidelines are the product of the efforts of the best minds in the accessibility arena – over many years. The Web Accessibility Initiative (WAI) started working on version 2.0 soon after WACG 1.0 was complete because it was apparent almost immediately that it was going to quickly become outdated.  Is that going to happen again? No. The flaws of WCAG 1.0 have been fixed with technology independence and testability.

Technology independence is useful or even possible because the guidelines have accompanying documents that can change with time.  The documents Understanding WCAG 2.0 and Techniques for WCAG 2.0 are crucial. With advancing technology, new techniques can be developed to implement the requirements of WCAG 2.0. And those can and will be included in the Techniques document by the guidelines working group.

It is true that in some cases the wording of the success criteria (formerly known as checkpoints in WCAG 1.0 and provisions in Section 508) is somewhat arcane and that is seen as a disadvantage. But I think it is arcane because better succinct wording couldn’t be achieved and most importantly the Understanding WCAG 2.0 document is available to clear it up.

I believe one of the biggest weaknesses of the current Section 508 accessibility standards is the very poor documentation that accompanied the standards. That will not be a problem if the Justice Department references WCAG 2.0. Those living documents that accompany the guidelines offer a wealth of tried and true documentation. There is just no comparison with what exists for Section 508 and for WCAG 1.0 for that matter.

Solid, established, international in scope, the Web Content Accessibility Guidelines, Version 2.0, offer a perfect source of technical criteria for accessibility.

Which Success Criteria should be required for ADA Web Accessibility

OK, having established WCAG 2.0 as the definition of accessibility for the ADA – which of the success criteria should be required. By the way, establishing minimum standards as a subset of the WCAG success criteria does not mean the web developers can’t look to better access by responding to other guidelines in the basic document.

WCAC 2.0 success criteria are divided into three levels, which used to be called (more or less) priority 1, priority 2 and priority 3.  The WCAG Wording is Level A, Level AA and Level AAA.

I think it is entirely obvious that the DOJ should not require all of WCAG 2.0, or AAA conformance. I know of no one in the accessibility field who advocates that. That means that there is an interesting and hopefully useful question of exactly which of the Success Criteria of WCAG 2.0 should be adopted by the Department for ADA.

For comparison, the current version of the proposed Section 508 Web Accessibility Standards reflect level AA conformance (Priority 1 and 2). The Access Board does not, in its current document, just reference the WCAG 2.0 document – instead it rewrites each success criteria in Access Board language.

Most accessibility experts I know and have talked to also think level AA is the correct level for ADA web accessibility.

I don’t.

I think level AA is too strong, too complicated, too much. Every day I manually review websites for accessibility. It is unbelievable to me how poorly the web development community understands accessibility. A few days ago I had a conversation with a client who is developing web sites for the federal government. I had just reviewed a new site that the company was building.  “It has all the same problems,” I said; “has no one learned anything?”  “Too many developers” he said.

But there is more to my position than “it is too hard.” There is an alternative set of WCAG 2.0 success criteria, which are similar in scope to the current Section 508 Standards, which are achievable and which meet the basic web accessibility requirements.

For ADA Web Accessibility, the Justice Department should recommend all of WCAG 2.0, but should require Level A conformance plus just one Level AA success criterion, 2.4.7, which requires a visible indication of current keyboard focus.

I am certain that that suggestion would surprise some. Level A – sure. But why then add in the item about focus? That is because keyboard access is extremely important and being able to see where your focus is, is absolutely essential to that access. Level A success criterion 2.1.1 requires that everything be available without a mouse. I often see sites where that statement is true in theory. Every link or button can be tabbed to and activated, but you have no reasonable way to get to a link because you can’t follow the path that the Tab key gives you. Success criterion 2.4.7 is an essential part of keyboard accessibility and must be part of the ADA requirements.

Here is a very brief summary of the Level A success criteria.

  1. 1.1.1 Text alternatives for non-text content such as images
  2. 1.2.1 Alternatives for prerecorded Audio and Video
  3. 1.2.2 Captions for prerecorded multimedia
  4. 1.2.3 Audio Descriptions (or alternatives) for prerecorded multimedia
  5. 1.3.1 Use structural markup as designed – including data tables
  6. 1.3.2 Good reading order
  7. 1.3.3 Instructions don’t depend only on likes of sound size or location
  8. 1.4.1 Meaning not conveyed by color alone
  9. 1.4.2 Be able to stop automatic playing audio
  10. 2.1.1 All functionality available with the keyboard
  11. 2.1.2 Keyboard users don’t get trapped in content from which they cannot exit
  12. 2.2.1 Time limits are user friendly
  13. 2.2.2 Blinking or auto updating can be stopped
  14. 2.3.1 No flashing known to cause seizures
  15. 2.4.1 It is possible to skip over repeated content (skip to main content)
  16. 2.4.2 Pages have appropriate titles
  17. 2.4.3 Good keyboard focus order
  18. 2.4.4 Link Purpose clear from text or context
  19. 2.4.7 (Level AA) Visible Focus 
  20. 3.1.1 Language of the page
  21. 3.2.1 No change of context when object focused
  22. 3.2.2 Change in a form control does not cause change of context
  23. 3.3.1 Errors in forms well identified
  24. 3.3.2 Form labels
  25. 4.1.1 Valid nesting and unique id’s in markup language
  26. 4.1.2 Name, role and value known to AT

One of the reasons it is important to see this list is that it helps to emphasize that Level A conformance is strong, much stronger than WCAG 1.0 Level A or the current Section 508 Web Accessibility Standards. The Justice Department could even choose a subset of the Level A success criteria so long as the result is at least as strong as the current federal Section 508 Web Accessibility (and Software Accessibility) Standards.


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