March 18, 2022: DOJ Issues “Guidance”, Not Regulations

On March 18, 2022, the U.S. Department of Justice (DOJ) issued guidance for the first time for website accessibility under Titles II and III of the Americans with Disabilities Act (ADA). The guidance comes almost 12 years after the DOJ first proposed to issue website accessibility regulations.

The guidance has 5 parts:

• “Why Website Accessibility Matters”;
• “Examples of Website Accessibility Barriers”;
• “When the ADA Requires Web Content to Be Accessible”;
• “How to Make Web Content Accessible to People With Disabilities”; and
• “Web Accessibility for People With Disabilities is a Priority for the Department of Justice.”

Aggressive New Enforcement Alone Means Businesses Should Take Notice

Although the new guidance does not offer specific requirements to the business community that has been subject to thousands of accessibility lawsuits in recent years, it does come after the Biden DOJ has become much more aggressive beginning in 2001 than prior administrations regarding accessibility compliance. Taken together, the new DOJ guidance plus the new aggressive enforcement by the Biden DOJ, usher in a new enviorment for accessibility compliance.

Two noteworthy cases in point resulted in settlements regarding vaccine websites where the DOJ required conformance with WCAG 2.1 AA, despite the fact that federal agencies are only required to comply only with WCAG 2.0 AA.
So, despite the absence of specific requirements, it's clear that the new enviornment for accessibility compliance should be good reason for all businesses businesses to take notice and reconsider their current approach for website accessibility.

Are Web-Only Websites Covered by ADA?

Sadly, the guidance did not address this often-litigated issue; specifically, (i) whether websites without a physical nexus (e.g., a building) are regulated, and (ii) whether all portions of websites for businesses open to the public must be made accessible (despite the fact that those portions are unrelated to the portions that are open to the public).

However, the DOJ add that the ADA's requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”

Is WCAG 2.1 AA Now the Standard?

The DOJ did not address whether a website that has been conformed to WCAG 2.0 AA must now upgrade to WCAG 2.1 AA, which has additional success criteria not required under WCAG 2.0 AA
Given that a significant number of plaintiff's lawsuits now claim that WCAG 2.1 AA is the standard, it may be prudent for regulated websites to upgrade to WCAG 2.1 AA, provided WCAG 2.1 AA is “readily achievable”.

Are There Specific Requirements for Compliance?

Sadly again, the answer is no, there are not any specific requirements. So, businesses are left in the dark regarding whether they are in compliant, although WCAG 2.2 AA seems to be a prudent approach, all things considered.
The DOJ made it clear that businesses have “flexibility” regarding how they apply with ADA's general requirements of non-discrimination and effective communication.

The guidance does provide the following as “examples” of what businesses may do to make websites accessible, although the DOJ made it clear that this list is incomplete:

• “Why Website Accessibility Matters”
• “Text cues when using color in text”
• “Text alternatives (‘alt text') in images”
• “Video captions
• “Online forms”
• “Text size and zoom capability”
• “Headings”
• “Keyboard and mouse navigation”
• “Checking for accessibility” (using automated and manual auditing of websites), and
• “Providing means of reporting accessibility issues”.

What About Automated Solutions?

The DOJ cautioned against using automated solutions (e.g. plugins) alone for purposes of identifying or fixing accessibility barriers.

Instead, the DOJ recommended using a combination of automated solutions and manual checks.

Takeaway

Understand that the Biden DOJ is now engaged agressive accessibility enforcement. This is new, and all businesses should take notice. It's the new normal.Although WCAG 2.1 AA is not the official “standard”, targeting this level of compliance would be recommended if it's “readily achievable”.If you are creating a new or substantial redesign of an existing one, use this as an opportunity to build in accessibility compliance from the ground up.

In addition, add delivery of a fully compliant website a contract requirement for a new or redesigned website.

Blog Post Update: Dec 7, 2023

July 2023 - The DOJ Announced a Proposed Rule for State and Local Governments (ADA Title III)

Big Question: Will the DOJ follow up with new website requirements for commercial websites (ADA Title III)?

The proposed rule for ADA Title II is intended to provide specific website accessibility standards primarily for sight-challenged people, including:

    *  captioning videos,

    *  adding text descriptions to images for use with screen readers, andd

    *  enabling navigation via keyboard instead of a mouse.

At this time, there are no specific accessibility requirements for commercial websites.

This is because Title III provides a sliding scale for businesses for regarding their obligation to remove barriers to accessibility by taking into account the different resources available to large and small businesses.

Specifically, the Title III sliding scale requires removal of accessibility barriers that are “readily achievable” without “significant difficulty or expense” based on available resources.

In the absense of legally binding specific standards, the Web Content Accessibility Guidelines (WCAG 2.0 and 2.1) have become the “gold standard” for accessibility activists despite the fact that they are not legally binding at this time.

Takeaway

Will the DOJ follow up its current proposed rule for state and local governments with similar requirements for commercial websites?

Most commentators believe similar requirements for commercial websites are highly likely.

Author Bio

Chip Cooper is an eCommerce Attorney and Digital Marketing Compliance Attorney practicing as Of Counsel to the Atlanta, Georgia law firm of Jones & Haley, PC. For more information, visit eCommerceAttorney.io
©2022 Chip Cooper. All rights reserved.