The historical uncertainty regarding whether businesses must have websites and mobile applications that are accessible to persons with disabilities has been, in part, the result of the absence of regulatory direction as to whether such digital assets are covered by Title III of the Americans with Disabilities Act (ADA).
While regulations have yet to be promulgated, the United States Department of Justice (DOJ) on March 18, 2022 published Guidance on Web Accessibility and the ADA explaining that entities covered by Title II (state and local governments) and Title III (places of public accommodation) should ensure their websites are accessible to people with disabilities in line with the ADA’s requirements.
The Guidance explicitly confirmed the DOJ’s position that businesses and state and local governments “must ensure that programs, services, and goods that they provide to the public – including those provided online – are accessible to people with disabilities.” The DOJ explained that covered entities should address unnecessary barriers, such as inaccessible web content, so that individuals with disabilities have equal access to information.
The DOJ specifically noted that in recent years, “a multitude of services have moved online, and people rely on websites like never before for all aspects of living,” including accessing voting information, finding up-to-date health and safety resources, and looking up mass transit schedules and fare information. The DOJ’s Guidance clarified that 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 Guidance highlighted common examples of website accessibility barriers, including poor color contrast, use of color alone to provide information, lack of text alternatives (“alt text”) on images, a lack of captions on videos, inaccessible online forms, and mouse-only navigation (lack of keyboard navigation).
As we previously noted, the ADA does not currently mandate any particular technical standard for website accessibility, and the DOJ’s Guidance explained that businesses and state and local governments have flexibility in how they comply with the ADA. However, the DOJ pointed to existing standards, such as the Web Content Accessibility Guidelines (WCAG) as providing guidance concerning how to make website features accessible.
In emphasizing that web accessibility is a priority for the DOJ, the Guidance additionally provided a review of cases wherein the DOJ has used its enforcement authority to ensure businesses and state and local governments have made accessible goods and services offered online.
The DOJ’s clear position in this Guidance is likely to shape the development of this continually evolving legal space. Given the lack of concrete regulations, and the lack of specific requirements in this Guidance, we expect that litigation will continue to increase, as it has over the last five years. All businesses and state and local governmental bodies subject to the ADA should continue to stay informed, and are encouraged to review the accessibility of their websites and other digital assets and adopt an ADA Risk Management Program.