Settlement Shows Limits of a “Separate-But-Equal” Approach to Digital Accessibility

Building a separate “assistive” website may seem like a good way to provide resources to customers and clients with disabilities, but, as a recent settlement between the Department of Transportation (DOT) and Scandinavian Airlines System (SAS) shows, separate websites inevitably leave some users behind.

The SAS Settlement

Under the Air Carrier Access Act (ACAA), airlines operating within the United States are required to make the public-facing pages on their primary website accessible to individuals with disabilities. Since 2016, DOT regulations have further required that covered sites meet Web Content Accessibility Guidelines (WCAG) 2.0 Level AA standards. While the DOT’s regulations discouraged the use of separate “assistive” sites, it did not outright prohibit them.

In order to comply with the ACAA requirements, SAS retained a third-party vendor, who suggested that rather than rebuilding its site to be accessible, SAS could instead create an assistive version of the site that conformed to WCAG 2.0 Level AA requirements. The vendor also claimed that separate assistive sites complied with DOT regulations and were being used by other airlines.

In February 2017, the DOT’s Office of Aviation Enforcement and Proceedings discovered that SAS’s primary website did not meet WCAG 2.0 Level AA standards and opened an investigation.

In November 2018, SAS and the DOT agreed to a settlement, under which SAS agreed to cease and desist from providing a separate assistive website, to bring its primary website into compliance with WCAG 2.0 Level AA requirements, and to pay $200,000 in civil penalties.

The settlement stands as a warning to other organizations considering creating a separate assistive website for users with disabilities. Indeed, the consent order laying out the terms of the settlement expressly notes that it “represents a strong deterrent to future similar unlawful practices by SAS and other carriers.” Using a separate assistive website can put an organization at significant risk of legal action.

The threat of a lawsuit or administrative investigation isn’t the only reason not to use a separate assistive website, though. Separate sites raise a number of other significant issues, including the unequal treatment of users with disability, the conflation of all disabilities under a single umbrella, and the cost and difficulty of maintaining two separate websites.

Separate Assistive Websites Leave Users with Disabilities Behind

One of the most consistent problems with separate assistive websites is that they are rarely, if ever, actually equal. Indeed, the DOT recognized this in the preamble to its airline website regulations, noting that it is a “well-established principle of disability non-discrimination law that separate or different aids, benefits or services can only be provided to individuals with disabilities (or a class of such individuals) when necessary to provide aids, benefits or services that are as effective as those provided to others.”

Instead of helping users with disabilities, separate assistive websites often leave them behind.

According to Jon Avila, Chief Accessibility Officer for Level Access, assistive sites often only copy over select material, don’t stay updated and rarely provide all of the same dynamic functionality of the main site.

“People with disabilities do not want a separate site,” Avila said.

Even when a separate assistive website is built equally from the beginning, however, limited resources mean the assistive version can quickly fall behind.

“It’s more costly for a business for lots of reasons,” said Elle Waters, Vice President of Community and Global Development for Level Access. “Look to the m-dot websites of old as to why businesses shouldn’t go down this road.”

Avila also noted that having separate websites means customer service will need to be trained to assist users of both versions of the site. “The site looks different from others, and thus when the person must work with someone else, whether a friend or customer service, they may not be able to match up what is being said,” Avila said.

“Separate is never equal,” Waters noted.

Not All Users with Disabilities Are the Same

There’s another big problem with separate assistive websites: they assume all users with disabilities are the same and have the same needs. In reality, different users have different needs, which can vary depending on the time, place, or device they use to access the internet. An “assistive” site built for one type of user with disabilities may leave out functionality critical to other users.

“A separate site only meets the needs of some people with disabilities, and not even the majority of users. For example, a text-only site can be more inaccessible for many neuro-divergent users than a visual-based, dynamic site,” Waters said.

Avila agrees that a one-size-fits-all approach leaves out many users with disabilities. “Many of us use or may rely on different types of technology and settings. For example, a low vision user or person with cognitive disabilities may very much benefit from the visual aspects of a page, but may also want the programmatic markup used by a screen reader.”

Avila also emphasized that some users alternate between which accessibility features they use depending on the circumstances, device, or time of day. “You can’t put people with disabilities into buckets where this group uses these and only these set of accessibility features,” Avila said.

Good Design Is Accessible

The answer, instead, is to design a site that is accessible to everyone. A well-designed site or mobile app can be compatible with screen readers and optical zoom software, offer a high-contrast mode, provide captions and transcripts for video and audio content, and offer user interfaces that don’t rely on the use of a mouse or touchscreen.

Instead of building a separate assistive website that will never be equal—and probably isn’t even that accessible—organizations should instead focus on making their primary site open and usable by everyone, regardless of disability.

“There is no material reason a site can’t be made accessible and be used by all,” Avila said.

Building a separate assistive site may seem like a good solution in the short-term, but it can create a major legal headache later, as SAS discovered.

Key Takeaways

• In a recent settlement with the Department of Transportation, SAS agreed to cease and desist from using a separate assistive website for individuals with disabilities and pay $200,000 in civil penalties.
• The settlement highlights the legal risk for organizations relying on assistive websites to comply with accessibility laws.
• Separate assistive websites are never equal, as they usually contain incomplete information, are irregularly updated, and lack functionality, leaving users with disabilities behind.
• Assistive websites are generally inadequate for users with disabilities because they impose a one-size-fits-all approach that ignores that people, and disabilities, are different and have different needs.
• Assistive websites also cost more in the long run, as the organization finds it has to maintain and support two different sites.

The Bottom Line

Separate assistive websites aren’t the answer to creating accessible content. They might save money in the short run, but they create major legal headaches down the road. If your accessibility vendor has recommended building an assistive site in lieu of fixing accessibility issues with your website, talk to a different accessibility consult such as Level Access. We can provide you with a complimentary Risk Assessment of your websites to let you know how they are—and aren’t—accessible to users with disabilities, as well as work with you to determine proper next steps.