US DOJ issues web accessibility guidelines under ADA

Strong points

Under new ADA guidelines from the Department of Justice, covered entities must provide persons with disabilities with access to goods, services, programs and activities offered online

Entities “can choose” and “have flexibility” in how they provide access

The guidelines do not clarify or address several key issues that entities face in providing access to online offerings

On March 18, 2022, the US Department of Justice (DOJ) issued a new guidelines on website accessibility under Titles II and III of the Americans with Disabilities Act (ADA). The guidelines explain how state and local governments and “public accommodations” or businesses open to the public can ensure that their websites are accessible to people with disabilities, and emphasize that web accessibility is an enforcement priority for the DOJ.

The DOJ last issued guidance on this topic in June 2003which only targeted state and local government websites under ADA Title II and the Rehabilitation Act of 1973.

Disability advocates, as well as ADA-covered entities, have long implored the DOJ to clarify an entity’s obligation under the ADA regarding website and mobile application accessibility. In February, 181 advocacy organizations representing people with disabilities sent a joint letter to the DOJ asking it to resume its rule-making efforts on website accessibility and prioritize finalizing a rule of here the end of the current administration. The DOJ’s earlier efforts were withdrawn on December 26, 2017, without even a proposed settlement being released.

The new guidelines reiterate the DOJ’s position that the ADA’s requirement to provide effective communication to people with disabilities applies to goods, services, programs, or activities offered by state and local governments and businesses on the website. However, the DOJ also points out that covered entities “can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.” Although Covered Entities have flexibility in how they comply with the ADA’s general requirements for non-discrimination and effective communication, they must still ensure that the programs, services and goods they they provide the public online are accessible to people with disabilities. This is consistent with the DOJ’s earlier statement (set out in its September 25, 2018 response to a joint letter from more than 100 members of Congress) that covered entities have flexibility and that “failure to meet a standard Voluntary Technical Guidelines for Web Site Accessibility do not necessarily indicate non-compliance with the ADA.

However, the guidelines do not specify what this flexibility or choice entails. Notably, the DOJ has previously taken the position that access can be provided via an alternative method (such as a toll-free number), but has sought public comment in past regulatory efforts on whether and / or under what circumstances such alternative access should be permitted.

The guide provides examples of barriers to website accessibility:

  • poor color contrast
  • use of color alone to convey information
  • lack of text alternatives on images
  • lack of captions on videos
  • online forms inaccessible
  • lack of keyboard navigation

Guidance identifies resources for additional technical guidance and refers to both Web Content Accessibility Guidelines (WCAG), which are voluntary and published by the Web Accessibility Initiative of the World Wide Web Consortium (W3C), and the Section 508 Standards, which set out accessibility requirements for federal government websites. The Section 508 standards adopt the WCAG 2.0 Level AA Success Criteria. WCAG itself is an evolving set of guidelines. Since the promulgation of the Section 508 standards, WCAG 2.1 has been released, and WCAG 2.2 and WCAG 3 are in progress. Although the guidelines do not expressly endorse any particular version of WCAG, recent DOJ agreements regarding accessibility of COVID-19 vaccine registration websites reference WCAG 2.1 Level AA.

While the continued acknowledgment that covered entities have the flexibility to comply with their obligations under the ADA is welcome, the guidance itself does not clarify the issues that have made entities vulnerable to serial lawsuits. These issues include:

  • What guidelines and standards should be used to assess compliance? If a Covered Entity has WCAG 2.0 AA compliant website, does it still need to WCAG 2.1 AA compliant website? WCAG 2.1 does not change any of the Success Criteria included in WCAG 2.0, but adds additional Success Criteria dealing with items or features not addressed in WCAG 2.0. Many complaints and demand letters now refer to WCAG 2.1 AA instead of WCAG 2.0 AA.
  • How will “compliance” be defined? The DOJ has previously acknowledged that requiring 100% compliance 100% of the time is not a working definition of compliance in the digital realm. However, even entities that have invested significant resources in the accessibility of their websites continue to face complaints, even if the alleged impediments reflect isolated or de minimis issues.
  • What is the threshold for “excessive load” in the context of digital accessibility? Many serial file prosecutions have targeted a wide range of entities, including smaller entities with limited resources. A plan to achieve and maintain an accessible website can involve significant expense. For example, the cost of periodic and ongoing assessments and validation testing will vary depending on the nature of the website, the scope of testing, the frequency of testing, and the number of different assistive technologies and browsers used in the tests. An ongoing testing program is often part of the remedies sought in complaints, but the guidelines do not address the excessive demand threshold or the reasonableness of an ongoing testing and maintenance program.
  • What is an entity’s obligation with respect to third-party content? An entity’s website may include links to third-party websites, as well as content or features such as plug-ins, that an entity does not have the ability to modify or require the third party to make it accessible. An entity may face a difficult choice between potential liability under the ADA or omitting features or content that its users expect.
  • Is another method of access acceptable instead of making a website itself accessible? If so, under what circumstances will such an alternative access method be permitted and what forms can it take?

In summary, the guidance provides essentially no new information regarding the DOJ’s overall position and does not clarify the DOJ’s views on the many issues that can impact an entity’s ability to successfully navigate the compliance arena by accessibility in the digital domain.

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