The Legality and Practicality of Conforming Alternate Versions

Building something accessible from scratch is almost always easier and more cost-effective than trying to test and remediate after the fact. And sometimes organizations face logistical or legal obstacles to modifying published originals. So it’s understandable that some organizations might want to split the difference and build a brand-new alternate accessible version without updating the original (also known as a conforming alternate versions). In fact, while they don’t use the term “conforming alternate version,” this is exactly what overlay vendors that market themselves as AI automation are promising: to create an alternate accessible website version without having to invest in remediation.

Are conforming alternate versions allowed?

Sometimes.

The concept of creating an alternate version of inaccessible content is core to many individual WCAG guidelines and techniques. For example, audio-only content is inherently inaccessible to deaf or hearing-impaired users, so WCAG requires a text transcript. The same goes for alternative text for images.

Conforming alternate versions have a specific technical meaning in the Web Content Accessibility Guidelines that is broader. A conforming alternate version is produced at the page (or even site) level and is considered a valid approach for a WCAG conformant user experience. However, regulations may limit the viability of this approach. For example, the Department of Justice’s new Title II regulations for local and state government digital accessibility restrict the use of conforming alternate versions to situations with technical or legal limitations preventing the original version from being made accessible.

Even when legal, there are reasons why this shouldn’t be treated as a preferred solution. (We’ll get to those in a bit.) But the first hurdle is to understand which alternate versions can be considered “conforming” and which can’t meet that standard.

How to provide a conforming alternate version?

If a webpage (or site) is inaccessible, how can users find and access an accessible alternate version? One option is to make the accessible version the default and the inaccessible one the alternate. But when the original version remains the default, the site should meet one or more of the following requirements to ensure that the alternate versions can be found and accessed without barriers:

• There is a mechanism to access the alternate version (e.g. written instructions, link, user controls or settings)
• This mechanism must itself be accessible. For example, if a user controls widget has accessibility issues, it’s not valid even if the conforming alternate version is itself accessible.
• The non-conforming version can’t interfere with the user’s ability to access the conforming version. For example, if the original page has blinking or flashing content or keyboard traps, that is an accessibility problem even if there's a link to a non-blinking version or an overlay setting to turn it off.
• The alternate version must both be accessible and provide equivalent information and functionality.

Is this a good idea?

Although an alternate accessible version may be legally compliant, it doesn’t mean that it’s a good idea. There are good reasons why most reliable accessibility experts discourage this approach.

There's still legal risk

The ADA became federal law just a few years before the internet really took off; ADA Title III requires that “public accommodations” be made equally accessible to people with disabilities. In the physical world, this means that it is illegal for a restaurant to create a separate accessible dining area or entrance. The federal courts have extended "public accommodations” to the web by way of analogy to the physical world, but there are important differences between digital and physical experiences. While separating people with disabilities from other customers in the physical world constitutes a form of segregation, browsing the internet (on most websites) is already a solitary experience.

Even so, rightfully, there's suspicion that the separate version would not actually be equal and alternate conforming versions have not actually been blessed in any federal court decisions. In fact, the Air Carrier Access Act (ACAA) contains similar regulations for airline websites, but specifies that the primary website must be accessible; in 2016, the Department of Transportation fined an airline for creating an accessible alternate version.

Separate is rarely equal

Even if everything is above board legally, there is a reason that separate but equal is viewed as an oxymoron in a civil rights context. Commonly, alternate conforming versions are stripped-down versions of the original page with limited styling and design; while this may improve the user experience for some assistive technology users (like the blind), it's a lesser UX for sighted users with other disabilities (such as color-blind users or those who rely on magnification or keyboard-only navigation).

There’s also a risk that site editors will deprioritize or forget to apply updates on the alternate version. If the alternate version is late to receive new functionality or updated content, it will regularly slip out of compliance and be a bona fide example of actual discrimination against users with disabilities.

Also, frankly, separate but equal doesn't feel inclusive. In order to benefit from the alternate version, users must identify as having a disability and take an affirmative step to use the accessible version. This means many users may miss out on the accessible version and those that do use the alternate version may feel excluded.

Implementation difficulties

We’ve already alluded to some of the challenges of offering a conforming accessible version, but it’s worth emphasizing that it may not be as easy as it sounds.

• Building an alternate conforming version avoids fixing a legacy version but creates new technical debt. Maintaining two separate versions can be a lot of work.
• If content updates aren't automatically drawn from a central (headless) source, teams must also remember to apply content changes in multiple places.
• Accessibility issues in the existing (legacy) version can interfere with the user’s ability to find and access the alternate version.
• Alternate versions for specific assistive technology or disabilities are allowed, but the site must always have at least one version that is 100% accessible to all users.

When to consider alternate versions?

As we mentioned above, providing alternate versions of content is a core accessibility technique, but should be applied sparingly at the page or site level. One valid use case is when it is impossible to modify existing content for legal or technical reasons. For example, a company may be legally required to include an exact visual copy of a document. Organizations on the technological cutting edge may also build functionality or content not yet supported on assistive technologies, so it's important to build these products or services as accessible as possible, and provide an alternate accessible version in the interim.

If you must...

If you do find yourself in a position where you must provide a conforming alternate version, here are our recommendations for the best possible user experience.

• When possible, make the accessible version the default. For example, while you may need to maintain a PDF scanned from print, you can provide the content in HTML by default with an option to view the (inaccessible) PDF.
• Use headless content management to ensure automatic updates across all versions.
• Incorporate the existence of multiple versions into content and QA processes and checklists to ensure that the alternate version is regularly reviewed and maintained.

Our takeaways

Conforming alternate versions may seem tempting but may not save time or money in the long run. Instead of using overlays or trying to build a separate accessible website, we can help you make quick and measurable accessibility progress that benefits all users. Contact us for a complimentary manual assessment to kickstart your accessibility journey.