DOJ and web accessibility
The internet has been around for over 30 years (roughly as long as the Americans with Disabilities Act or ADA). The ADA does not reference websites explicitly, but the federal government (in the form of the Department of Justice) has claimed that websites are subject to accessibility requirements as early as 20 years ago. So it is surprising and a bit disappointing that the government had not until recently provided concrete regulations (or even guidance) as to what that means for business websites.
For a while, the Department of Justice (DOJ) had promised to issue rules to clarify that all business websites are subject to the ADA, but this was delayed indefinitely in early 2017. This delay, along with a pause in government enforcement action against inaccessible websites, left a gap that was quickly filled by private lawsuits. Since 2017, that wave of lawsuits has kept growing each year. By 2021, thousands of private lawsuits were filed in court and many more businesses paid cash settlements rather than risk fighting the claims in court.
The government’s silence on this topic finally ended last month when the DOJ published its Guidance on Web Accessibility and the ADA. This is a huge milestone for digital accessibility and an improvement over the previous uncertain status quo. That said, we were disappointed that the contents of the guidance document falls short of what we would have hoped for.
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Unclear accessibility requirements and standards
In the absence of any federal regulations, the courts have been left to decide different types of businesses’ ADA web accessibility obligations and what standards they need to meet for compliance. Some courts have ruled that only sites connected to a physical place of business are covered while others have a more expansive definition of “public accommodations” under the ADA. This new DOJ guidance does not add enough clarity on what counts as “public accommodations” when it comes to websites, which means that we still don’t know what types of business websites are covered.
The guidance also does not describe the actual standards that websites need to meet. While the document does say that automated solutions are insufficient, it doesn’t say what is sufficient. The same problem applies to the government’s examples of common accessibility issues to check for; it issues an explicit disclaimer that this is not a complete list.
In the absence of regulations, courts have previously treated the Web Content Accessibility Guidelines (WCAG) as the de facto standard. The government has also referenced WCAG as a standard in issuing accessibility rules for government websites. But the DOJ guidance doesn’t even instruct businesses that they are safe following WCAG (nor does it issue any guidance on which version of WCAG should be used). This means that businesses still have no certainty as to what they must do in order to be certain that they are within the law.
Why does this matter?
An affirmation from the federal government that business websites are covered under the ADA is still important. But without clear requirements, it is hard for businesses to understand what they need to do and the right efforts to invest in. Even after years of court rulings that websites must be accessible under the ADA, most sites have basic accessibility issues. Most site owners (and digital agencies for that matter) are not well-versed in digital accessibility and in our opinion it’s not entirely fair to expect them to know what to do.
Within the accessibility world, “everyone” knows to target the Web Content Accessibility Guidelines version 2.1 Level AA. But it still hits differently when the government issues regulations to that effect. It’s reasonable to assume that developers and vendors would prioritize accessibility in response. The vast majority of websites are not built entirely from scratch and ultimately the highest impact change will come from having accessibility-compliant platforms, services and products. Imagine how different things might be if content management systems, e-commerce carts and checkouts, and form services would compete on ADA compliance.
What should you do now?
We wish the DOJ were able to offer businesses more certainty, but there is a lot that we do already know. While federal courts in different circuits have issued conflicting opinions, it is very clear that in at least some jurisdictions website accessibility requirements apply to most consumer facing websites (and plaintiffs have a lot of control over where they file suit). And in response to the high (and growing) number of private ADA lawsuits, most courts have relied on WCAG 2.0 or 2.1 Level AA as their standard. Finally, there have been court rulings that indicate that automated overlays are not good enough.
Taken all together, the best approach is to target WCAG 2.1 Level AA conformance for your website. That said, perfection is the goal but the journey matters. More accessible is better than less accessible. Start by finding and addressing the highest impact accessibility barriers on your site to significantly reduce your legal risk and begin improving the site experience for all users.
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