
By: Ashley S. Jenkins and Minh N. Vu
Seyfarth synopsis: The DOJ’s new step-by-step guidance for state and local governments on how to comply with new regulations that mandate accessible web content is also useful for public accommodations looking to make their websites and mobile apps accessible to individuals with disabilities.
In April 2024, the Department of Justice (“DOJ”) published a new regulation setting technical standards that state and local governments must follow to make their web content (e.g. websites, mobile apps, information on third party websites) accessible to people with disabilities. That rule requires covered entities to make their web content conform to the Web Content Accessibility Guidelines Version 2.1, Level AA (“WCAG 2.1 AA”), subject to a few limited exceptions, as we discussed in a prior blog post. The DOJ followed up a month later with a Small Entity Compliance Guide explaining the rule and its exceptions, and then on January 8, 2025, issued a “resource” document (the “Resource Document”) containing step-by-step guidance for how these entities should approach the daunting task of making their web content conform with WCAG 2.1 AA.
While the DOJ issued the Resource Document for state and local governments, the document is useful for public accommodations that seek to create, implement, or refine their own digital accessibility programs. This challenge is (or should be) top of mind for all businesses that interact with the public on the web given the thousands of lawsuits filed each year about websites and mobile apps that are allegedly not accessible to persons with disabilities.
The key steps DOJ recommends in the Resource Document that entity take to make its digital assets conform to WCAG 2.1 AA are:
- Identify key personnel within your organization to be responsible for ensuring digital assets conform to WCAG 2.1 AA. These individuals will likely include IT personnel, marketing personnel who create web content, procurement personnel, and members of risk, compliance, and/or legal departments. The Resource Document recommends making sure these individuals are aware of their roles and responsibilities. If current staff lack the requisite expertise, organizations should consider engaging an outside expert to provide training or assistance.
- Train Staff. Individuals responsible for digital accessibility compliance must be trained on what digital accessibility is and why it is important. The training must be tailored to their role (e.g., training for web designers will be different from training for marketing staff). Anyone who is permitted to make changes to the website or mobile app, and who field inquiries regarding accessibility from the public should receive some form of digital accessibility training relevant to their role.
- Identify the Digital Content your Entity Provides. Before an organization can start addressing digital accessibility, it must identify the websites, mobile apps, and other web content that it makes available to the public. Entities should prepare a list of all websites, mobile apps, and third-party platforms (e.g. social media) where their web content is placed, and the type of content on those pages (HTML, PDFs, Videos, Images).
- Understand What Types of Web Content Can Be Given Lower Priority. The regulation for state and local governments actually exempts certain web content from WCAG 2.1 AA conformance. While these exemptions do not apply to public accommodations at this time, public accommodations can consider this list informative as to what the DOJ might not focus on an enforcement effort, and thus put a lower priority on the following items in their remediation efforts:
- Archived web content
- Content posted by third parties
- Password-protected individualized electronic documents
- Preexisting electronic documents (PDFs, word processor files, presentation formats and spreadsheets)
- Preexisting social media posts
- Determine Which Content Must Comply. After Step 4, entities should determine what specific content remains to be remediated and who within the organization controls that content.
- Determine What Actions Need to be Taken. Once an entity has a complete list of its public facing digital content, it must audit this content against WCAG 2.1 AA success criteria to determine what pages/components of the content do not conform to WCAG 2.1 AA and require remediation. The Resource Document is a bit vague about how to go about this audit but does make clear that automated testing tools alone are insufficient because those tools cannot test for all aspects of accessibility. Thus, a proper audit must include some combination of automated and manual assessment. In our experience, few organizations have the internal expertise to conduct an audit of their websites or mobile apps. We recommend hiring a reputable third-party digital accessibility expert to conduct a manual and automated audit of websites and mobile apps. Hiring the right consultant and determining the most appropriate (and cost effective) form to receive the audit results can be challenging and can often benefit from guidance from attorneys experienced in digital accessibility.
- Prioritize Remediation. After receiving audit results, entities must prioritize the required remediation actions. The DOJ suggests prioritizing the remediation of issues that (1) affect key tasks; (2) pertain to frequently accessed content; (3) have been flagged as inaccessible by individuals with disabilities; (4) are in development; (5) appear across multiple web pages, like navigation menus, search features, and standardized footers; and (6) are based on a template.
- Review Relevant Vendor Contracts. Many organizations engage third-party vendors to create or provide content for their websites and mobile apps. The DOJ recommends the following types of measures to ensure that deliverables conform to WCAG 2.1 AA: (1) requiring vendors to provide detailed information about the level of accessibility of their product before signing any contracts; (2) asking vendors to include a warranty in their contracts stating that they comply with certain technical standards and applicable Federal and state accessibility laws; (3) including language in their contracts prohibiting vendors from disclaiming any accessibility warranties; (4) requiring vendors to provide indemnification for any breach of any accessibility warranties; (5) testing the accessibility of vendor products.
- Create Policies for Digital Accessibility. The DOJ strongly recommends that entities have digital accessibility policies, and the Resource Document provides links to various resources on how to draft such policies. In our experience, digital accessibility policies should, at a minimum, identify which assets are covered, the accessibility standard to be applied (and any exceptions), the business unit(s) responsible for ensuring compliance, the process for compliance and considering exceptions, and a process for customers to make accessibility requests or report accessibility issues.
The Resource Document should be required reading for every business with digital assets, as the discussion, examples, and resources are very useful.
Edited by John W. Egan and Kristina Launey