After many years of silence, the Department of Justice published a long-awaited guidance statement regarding its stance on web accessibility. However, while the Department states that web accessibly is a priority and that making websites accessible to people with disabilities is required by the Americans with Disabilities Act of 1990 “ADA”, 42 U.S.C. § 12101, the guidance is more notable for what it does not say rather than what it does.
The ADA, written in the nascent days of the internet, does not even mention websites. Because of this, as well as Congress’s inaction (see the Online Accessibility Act of 2021 that has failed to advance) more guidance from the DOJ has long been sought. While the DOJ had indicated that it would issue regulations regarding web accessibility, it never did.
To make matters more confusing, whether or not all websites are considered places of public accommodation under the ADA and thus required to provide accessibility, has been the subject of a circuit split. The Third, Sixth, and Ninth Circuits have concluded that the ADA only applies to websites that have physical locations. The First, Fourth, and Seventh Circuit have held that a website can be a place of public accommodation, even if they do not have a physical space. The confusion has led to forum shopping and an increase in litigation.
While it is helpful that the DOJ states that “[s]ince 1996, the Department of Justice has consistently taken the position that the ADA applies to web content,” the guidance skirts the important question raised by the circuit split. Instead, it simply states that “all goods, services, privileges or activities offered by public accommodations, including those offered on the web need to comply with the ADA” without so much as a nod to the fact that there hasn’t been an agreement as to when exactly a website is a public accommodation.
In addition, with respect to the details of what is required for accessibility, the guidance mostly summarizes requirements the DOJ has imposed in previous settlement decisions. The examples of features that businesses should consider include fairly obvious things like: color contrast, text alternatives, closed captions, and accessible online forms. The guidance also cites well-known technical standards such as Web Content Accessibility Guidelines which have been the go-to for web developers for some time.
While many businesses already implement many of the items mentioned in the guidance, in anticipation of continued litigation and DOJ enforcement, as well as building the best consumer experience for their disabled customers, companies should audit their own compliance with the actions detailed in the guidance and previous DOJ settlements to mitigate risk. This includes:
- Accessibility-By-Design. Businesses should use accessibility-by-design principles from the ground up when building new products, websites, or pages to ensure accessibility.
- Creating a roadmap for WCAG compliance. If you are not already in conformance with WCAG 2.1 AA, create a roadmap for your business and include concrete steps, owners, allocation of resources, and a timeline for achieving conformance.
- Add WCAG compliance to developer and vendor contracts. If your business relies on contracts with third-party developers, designers, or vendors, ensure that a WCAG-conforming product is part of the negotiation and a line item in all your contracts.
- Implement the list provided by the DOJ. The guidance offers a non-exhaustive list of what a business should do to make their website accessible, including ensuring adequate color contrast in text, using text cues in addition to color cues, using “alt text” in images, adding captions to videos, ensuring forms can be read by screen readers, ensuring the ability to zoom to increase text size, using headings on the website, allowing for keyboard navigation in addition to mouse navigation.
- Create a simple way to report accessibility issues. Ensure websites provide an easy way for the public to report accessibility issues and then put a process in place to prioritize and fix those issues.
- If resources allow, hire independent auditors. In the past, the DOJ has required companies to hire independent auditors and implement improvements flagged (see RiteAid and H&R Block). Hire an auditor to ensure you know where your business needs to improve.
A complaint many advocacy groups have is that businesses often do not seem to care about accessibility issues. Taking these steps and being transparent and accountable, proactively communicates a business’s commitment to accessibility.
The guidance, however repetitive it is, indicates the possibility of increased enforcement activity. As businesses investigate their own practices and take steps toward greater accessibility, it’s important to keep in mind two realities: (1) the DOJ has acknowledged that 100% compliance isn’t practicable – progress, not perfection is important; and (2) guidance will change and evolve with new technology – so keep an eye out for new developments.
