John W. Egan, Julia N. Sarnoff and Minh N. Vu

Seyfarth Synopsis: The W3C recently adopted Version 2.2 of the Web Content Accessibility Guidelines (WCAG) which adds nine new success criteria for digital accessibility.

On October 5, 2023, the Worldwide Web Consortium (W3C) issued Version 2.2 of the Web Content Accessibility Guidelines (WCAG).  Version 2.2 is the third iteration of the WCAG since 2008.  Version 2.0 (issued on December 11, 2008) consists of 61 “success criteria” for digital accessibility.  Version 2.1 (issued on June 5, 2018) added 17 success criteria to those that made up Version 2.0, for a total of 78.  Version 2.2 adds 9 new success criteria and removes one (i.e., Success Criterion 4.1.1 Parsing, Level A), for a total of 86 success criteria.  Thus far most experts agree that covered entities should focus on the success criteria designated as Levels A and AA, but that only reduces the number of success criteria to 55 in WCAG 2.2. 

The addition of even more success criteria to the W3C’s website accessibility guidelines is likely to cause frustration and confusion for businesses and state and local governments presently struggling to meet one of the earlier versions of WCAG.  A recent report to Congress found that many federal agencies required to comply with Levels A and AA success criteria of WCAG 2.0 (“WCAG 2.0 AA”) are not in conformance.  In fact, WCAG 2.0 AA is the only version of WCAG mandated by any federal law.  Those federal laws specify that federal agencies, providers of health care programs and services that receive federal financial assistance, and airline carriers must have websites that conform to WCAG 2.0 AA.  And in recent proposed regulations for state and local government websites, the Department of Justice (DOJ) proposed to adopt Levels A and AA success criteria of WCAG Version 2.1 (“WCAG 2.1 AA”) as the accessibility standard. 

What are these nine new success criteria?

  1. 2.4.11 Focus Not Obscured – Minimum (Level AA): This criterion benefits individuals with mobility or other disabilities who rely on a keyboard interface and need to be able to see on the screen where the keyboard is “focused”.  It requires that the focus indicator on a button or link (usually indicated by an outline around the button/link) not be entirely hidden by a pop-up or any other floating content on the page.
  2. 2.4.12 Focus Not Obscured – Enhanced (Level AAA):  This criterion is similar to its AA counterpart (2.4.11 above), except that the “enhanced” Level AAA version would require that the focus indicator on an interactive control be wholly unobscured by any pop-up or other floating content on the page.
  3. 2.4.13 Focus Appearance (Level AAA): This criterion, designed for individuals with disabilities who rely on a keyboard interface (including those with low vision), is a technical standard for what the focus indicator outline should look like. 
  4. 2.5.7 Dragging Movements (Level AA):  This criterion benefits individuals with manual dexterity disabilities.  It requires that for any action that involves dragging movements, the website must also provide a simpler alternative way to complete that action that does not require dragging movements.  There is an exception, however, for dragging functionality that is essential to a website.
  5. 2.5.8 Target Size – Minimum (Level AA):  This criterion benefits individuals with motor disabilities and provides a general minimum size for clickable elements on a webpage, such as links and buttons.
  6. 3.2.6 Consistent Help (Level A):  This criterion benefits screen reader users (who are typically blind or have other vision-related disabilities).  It requires that any help functionality provided on a website be located in the same place across all pages of the site, so that it is easy to find. 
  7. 3.3.7 Redundant Entry (Level A):  This criterion, designed to benefit those with cognitive or memory related disabilities, requires that any information previously entered by the user on a website that is required to be entered again in the same process be either (a) auto-populated on the website or (b) available for the user to select again.   
  8. 3.3.8 Accessible Authentication (Minimum) (Level AA):  This criterion benefits individuals with cognitive disabilities and prohibits websites from requiring users to complete cognitive function tests during the authentication process, subject to four exceptions. 
  9. 3.3.9 Accessible Authentication (Enhanced) (Level AAA):  This criterion is the same as its AA counterpart (3.3.8 above), except that it removes two out of the four exceptions to the rule against requiring cognitive function tests (no exceptions for “object recognition” and “personal content”).

Should businesses meet these new success criteria?  We think businesses should prioritize getting to and maintaining substantial conformance with WCAG 2.1 AA because WCAG 2.1 AA was just proposed for state and local government websites by the DOJ a few months ago, and all federal agency websites are only required by law to meet the less demanding WCAG 2.0 AA.  Plus, the W3C already has a working draft of WCAG 3.0 which the W3C describes as an entirely “new model” with “many differences” from WCAG 2.  In short, WCAG 2.2 could be outdated in a few years. 

The W3C’s changes to its website accessibility guidelines shines the light on the need for the DOJ to exercise its own judgment in determining which success criteria should be adopted as legal requirements applying to the websites of private businesses and state and local governments.  The process of making and maintaining an accessible website requires a substantial investment of both money and human capital.  Businesses and state/local governments should not have to deal with a moving target, especially one set by an entity that is not accountable to Congress or any Executive agency and has no statutory authority to issue any legal standards under the ADA.