Department of Justice to companies with inaccessible websites: We’re back!

Settlement Agreement template with signareu
Deconstructing the Rite Aid settlement agreement

On November 1, 2021, the Department of Justice published a settlement agreement it entered into with the nationwide pharmacy chain Rite Aid specifically concerning the inability of people with disabilities to use both Rite Aid’s COVID vaccine service web pages and portal.

Here are my takeaways:

The Whitehouse and the DOJ consider the correct accessibility standard to be WCAG 2.1 Level AA

It doesn’t matter that Section 508 uses the almost-decade older WCAG 2.0. The Whitehouse and DOJ have adopted 2.1. Ignore this fact contained in clause 13(a) of the Rite Aid settlement agreement at your peril.

Rite Aid does have the option of choosing a different standard. However, Rite Aid carries the burden of demonstrating to the government that the standard they want to use instead of WCAG 2.1 Level AA provides equally effective or greater accessibility and usability. Good luck with that.

A-level bugs are not OK.

The DOJ is not asking for accessibility perfection and understands that bugs happen. That is recognized in clause 13(c), which begins with:

A limited number of isolated instances of noncompliance … shall not constitute a material breach of this Agreement

“Isolated instances of noncompliance” appears to be government-speak for “bug.”

Rite Aid releasing updates containing A-level bugs could easily be considered a material breach of the settlement agreement. A-level bugs, by definition, block people with disabilities from being able to perceive, operate, or understand chunks or even all of a web page. However, it looks like the DOJ considers a few, scattered, periodic AA bugs that do not impact a person with a disabilities’ access to the Rite Aid COVID pages acceptable.

Rite Aid has a maximum of 15 days to fix accessibility bugs and may not launch new code if bugs are present

I’ve discussed many times in previous articles that if organizations postpone dealing with known accessibility issues until someone pushes them into a dispute, that organization will completely lose control of their Software Development Life Cycle. Clause 15 of the settlement agreement is a classic example of this.

Clause 15(a) states that bugs picked up by automated testing must be fixed within 15 days, and bugs that prevent a person with a disability from accessing information about the COVID-19 vaccine, scheduling a vaccination appointment, or completing vaccination-related forms on the Vaccine Registration Portal must be fixed within 10 days.

In addition, clause 15(c) specifically calls out:

Should the Accessibility Tool identify a barrier in Vaccine Content that has not yet been launched that would prevent a person with a disability from accessing the substantive information Rite Aid provides about the COVID-19 vaccine, scheduling a vaccination appointment, or completing vaccination-related forms on the Vaccine Registration Portal, Rite Aid shall not launch that new Vaccine Content until the critical issue has been addressed.

Relying on a third-party accessibility consultant will never be a valid defense against inaccessible web pages or services

It is quite apparent that the only thing the DoJ cares about is the accessibility of the website and services. What the DOJ doesn’t give two hoots about is what the defendant did if the resulting web pages and services remain inaccessible.

For example, in clause 5 of the Settlement Agreement, Rite Aid provided evidence that they used an outside accessibility consultant to “conduct an audit and provide guidance.”

Using an accessibility consultant is evidence that an attempt is being made at providing equal access.

Using an accessibility consultant without comprehensive action and permanent process change is the accessibility equivalent of “thoughts and prayers.”

The only evidence of accessibility success is accessible web pages. This settlement agreement would not have been necessary if Rite Aid’s COVID pages and services had been accessible. Obtaining the services of an independent accessibility consultant will never be enough if the published web pages aren’t accessible.

Using an automated accessibility tool by itself is never enough and testers with disabilities using assistive technology matter.

In clause 5, Rite Aid also provided evidence that they were using an automated accessibility scanning tool. Automated scanning tools can only cover 30–40 % of the accessibility guidelines. Again, the only thing the DOJ cares about is whether the pages provide equal access. Automated testing alone will never, ever be enough.

The DOJ recognizes the limitations of automated accessibility testing tools by mandating in Clause 16(a) that Rite Aid use “manual testing from both a programmer/code and user/assistive technology perspective (which will include user testing conducted by individuals who are blind, have low vision, or have difficulty using a mouse utilizing assistive technology related to their disability)”

Other miscellaneous portions of the settlement agreement

  1. Clause 14 of the settlement agreement requires Rite Aid have both accessible web pages AND a toll-free number that accepts relay calls. Whether a phone line can replace inaccessible digital access has been a core issue of Domino’s litigation. Domino’s has repeatedly claimed for years that when 24×7 toll-free phone access is provided, the web pages and app are redundant. The most recent Domino’s case shot down that argument, and now, the DOJ has thoroughly rejected this line of reasoning in the Rite Aid case as well.
  2. Rite Aid can’t change its accessibility tool or accessibility consultant without the government agreeing to that change.
  3. Rite Aid must provide a total of eleven reports to the DOJ demonstrating their progress in keeping the vaccine portal accessible
  4. Rite Aid must conduct formal, annual accessibility training for all Rite Aid employees involved in the Vaccine Content design, development, maintenance, and/or management.