On March 18th, 2022 the U.S. Department of Justice (DoJ) published their Guidance on Web Accessibility and the ADA. Here’s what’s important that you know:
The guidance covers the application of Title II and Title III of the ADA to web sites and applications.
Title II of the ADA applies to state and local governments. The DoJ is likely to take a broad view of coverage for state and local government activities: “For these reasons, the Department has consistently taken the position that the ADA’s requirements apply to all the services, programs, or activities of state and local governments, including those offered on the web.” We’d counsel any website provided by a state or local government agency assume it’s covered.
Title III applies to businesses that are open to the public. These are known as “public accommodations” under the ADA. The DoJ is likely to take a broad view of coverage for public accommodations: “For these reasons, the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.” The connection between the website of a business and the definition of “public accommodation” under the ADA is a source of much debate. The DoJ’s view here is likely to be broad as well: “A website with inaccessible features can limit the ability of people with disabilities to access a public accommodation’s goods, services, and privileges available through that website—for example, a veterans’ service organization event registration form.”
In practice, whether or not a businesses website is a public accommodation is largely irrelevant as there’s generally enough legal coverage in most jurisdictions to allow litigation to be filed. So it’s an interesting debate but, in our experience, doesn’t change the compliance calculus for a business much.
The DoJ is focused on digital accessibility
“Ensuring web accessibility for people with disabilities is a priority for the Department of Justice. In recent years, a multitude of services have moved online and people rely on websites like never before for all aspects of daily living.” There’s also the inescapably clear header in the document “Web Accessibility for People with Disabilities is a Priority for the Department of Justice” which makes it clear this is an area the DoJ is focused on. This is consistent with the enforcement actions we saw during the Obama administration and are seemingly starting anew in the post-COVID era of the Biden administration.
Compliance is required, but how is flexible
“Businesses 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. The Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.” The footnote for the above references the General Rule of the ADA – 42 U.S.C. §12182(a). That’s consistent with our long standing, published view that the “full and equal enjoyment” standard of the general rule is an appropriate standard to apply in determining if a site is broadly “compliant” with the ADA’s equal access obligations.
The DoJ also clearly notes that there is “not … a regulation setting out detailed standards” for web accessibility. Later the DoJ notes that existing standards – notably the Web Content Accessibility Guidelines – can be useful in providing guidance for access but is not a determinant of compliance. This, combined with the overall tone of the document, reinforces our long held point of view: technical compliance with a standard like the WCAG 2.1 AA can be useful in supporting compliance but, ultimately, it’s only part of a variety of factors that determines ADA compliance for a website.
Framed differently: A site that is perfectly compliant with the WCAG but isn’t practically accessible is non-compliant with the “full and equal enjoyment” standard of the ADA. Conversely a site that isn’t compliant with the WCAG but is functionally usable by people with disabilities is likely compliant with the “full and equal enjoyment” standard of the ADA. This aligns with our longstanding focus on usability by people with disabilities as the core determinant of compliance with the ADA.