DOJ guidance confirms ADA applies to website accessibility, but brings good news for businesses
Q: Why did the Department of Justice release a statement on website accessibility?
A: As discussed previously, an increasing number of companies nationwide have been hit with lawsuits that claim their websites are places of public accommodation under Title III of the Americans with Disabilities Act (ADA) and, therefore, must be accessible for all. Common website problems, including incompatibility with screen-reading software, may create barriers for disabled individuals. In response, 103 members of the U.S. House of Representatives sent a letter to the Department of Justice (DOJ) in June, requesting clarity. The DOJ issued a statement in response, which makes clear that it considers the ADA to apply to websites.
Q: Did the Department of Justice clarify what standards apply to determining if a website is in compliance with the law?
A: No. The statement provides no clarity on what specific technical standards must be followed, yet makes clear that the government expects companies to make an effort to make their websites accessible to individuals with disabilities.
Q: So what’s the good news?
A: The good news is this part of the statement: “noncompliance with a voluntary standard for website accessibility does not necessarily indicate noncompliance with the ADA.” Up to now, with no specific technical guidelines in place from the DOJ, plaintiffs’ attorneys, advocacy groups and companies were assuming that a set of guidelines known as “WCAG 2.0 AA” were the applicable guidelines to follow. Although the guidelines have no force of law, plaintiffs’ attorneys have often claimed websites that have failed in some way to meet WCAG 2.0 AA are in violation of the ADA. Now the DOJ’s letter makes clear that it doesn’t view compliance with every aspect of WCAG 2.0 as required under the ADA. Instead, the statement provides that “public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication.” While it’s too soon to tell if this new flexibility will stem the tide of accessibility lawsuits, it should open the door to allowing businesses to attempt to prove that their websites or businesses are accessible, despite not meeting every aspect of WCAG 2.0 or the recently released WCAG 2.1 guidelines. However, businesses covered by the ADA that have taken no proactive steps to attempt any sort of accessibility on their websites still place themselves at legal risk for an accessibility lawsuit.