By Minh N. Vu
Seyfarth synopsis: The DOJ issued a new guidance on website accessibility that contains basic information about the ADA’s requirements for lay people but no new information for legal practitioners.
We can only speculate as to whether it was a response to the recent demand of 181 disability advocacy groups for regulations on website accessibility, but this past Friday, March 18, the U.S. Department of Justice (DOJ) issued an unexpected “Web Accessibility Guidance” for state and local governments and public accommodations under Titles II and III of the Americans with Disabilities Act (ADA). Those looking for new legal insights from DOJ on this subject will be disappointed because the Guidance merely reiterates what experienced legal practitioners in this area already know based on DOJ’s prior statements. The Guidance seems to be targeted at business owners and government employees who are unfamiliar with the DOJ’s position on website accessibility and/or legal basis for that position. In fact, the DOJ’s press release explains that the Guidance “offers plain language and user-friendly explanations to ensure that it can be followed by people without a legal or technical background.”
The Guidance discusses the importance of website accessibility to people with disabilities and provides some examples of common barriers on websites. In the section called “How to Make Web Content Accessible to People with Disabilities,” DOJ acknowledges that “[t]he Department of Justice does not have a regulation setting out detailed standards,” but insists that “the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.” The DOJ further says that “[b]usinesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication. But they must comply with the ADA’s requirements.” (Emphasis added.) Unfortunately, the DOJ does not discuss what it means by “flexibility.” Likewise, the DOJ states that “[b]usinesses and state and local governments can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.” (Emphasis added.) But again, the DOJ does not specify the options from which businesses and state and local governments may “choose” to accomplish this goal.
On the question of how to make one’s website accessible, the DOJ states that “[e]xisting technical standards provide helpful guidance concerning how to ensure accessibility of website features. These include the Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards, which the federal government uses for its own websites.” Interestingly, while Section 508 requires conformance to WCAG 2.0 Level AA, DOJ has been insisting on the more demanding WCAG 2.1 Level AA in its recent settlements with places of public accommodation under Title III.
The Guidance then reminds covered entities that the DOJ considers website accessibility a priority and lists some settlements reached by the DOJ with state and local governments and businesses. We saw some questions on social media after the issuance as to why the Guidance does not cover intranets (employee-facing technologies). That would be covered by Title I of the ADA, which is enforced by the EEOC, not the DOJ.
Our takeaway? After four years in which the Trump DOJ did very little to require businesses and state and local governments to make their websites accessible, the Biden DOJ felt the need to announce that website accessibility is back on the Civil Rights Division’s enforcement agenda, just as we predicted it would be. Whether the DOJ takes any further action toward enacting regulations on this subject, as the 181 advocacy groups called upon it to do, remains to be seen.