Skip to Main Content

Publications

New DOJ Guidance Confirms that Website Accessibility is Mandatory for all Public Accommodations


As the number of lawsuits alleging inaccessible websites has increased over the past several years, business owners have faced the question: how do I make my website(s) and/or mobile application(s) compliant with the Americans with Disabilities Act (“ADA”)? On March 18, 2022, the Department of Justice (“DOJ”) released long-awaited guidance for how business owners and state and local governments can bring their public-facing websites into compliance, and increase accessibility to users. This is the first time the DOJ, or any other federal body, has weighed in on the issue, which up until now, had been left to the interpretation of the courts.

Hinckley Allen released an alert about the importance of businesses ensuring that their online presence is accessible to consumers with disabilities last year.[1] We noted the importance of businesses ensuring the accessibility of their websites to all users, including those with disabilities, particularly as companies are increasingly transacting business online. We also predicted that the DOJ may increase its digital accessibility investigations and enforcement actions, as President Biden vowed to aggressively enforce the ADA. The DOJ’s recently released guidance confirms that prediction by unequivocally announcing that enforcing website accessibility is a priority for the DOJ.

The DOJ Clarifies that the ADA Applies to Businesses, State and Local Governments

The first thing that the DOJ guidance clarifies is who should make their websites accessible. On that point, the DOJ is focused on more than just the accessibility of businesses’ online presence. The DOJ’s guidance sends a message to local and state governments that they must also make their websites accessible to persons with disabilities.

Title II of the ADA prohibits discrimination against people with disabilities in all services, programs, and activities of state and local governments.[2] Many state and local government services, programs, and activities are now being offered on the web, and individuals rely on these websites as part of their daily life, to access things such as voting information, paying tickets or fees, filing a police report, attending a virtual town meeting, filing tax documents, finding up-to-date health and safety resources, and looking up mass transit schedules and fare information. Thus, state and local governments must take steps to ensure that they are effectively communicating with people with disabilities.

In addition, businesses are reminded that Title III of the ADA requires that businesses open to the public provide full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people with disabilities.[3] Examples of businesses include retail stores and other sales or retail establishments; banks; hotels, inns, and motels; hospitals and medical offices; food and drink establishments; and auditoriums, theaters, and sports arenas.

Thus, business owners and state and local governments are cautioned: “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,” and “to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”

Examples of Digital Barriers

In addition to clarifying who must bring their websites into compliance, the DOJ guidance also answers a question that was previously unanswered: what exactly is an accessibility barrier in the online world? For the first time, the DOJ gives examples of what digital accessibility barriers look like. Some examples are:

  • barriers related to website coloring, such as poor color contrast and use of color alone to give information, which are difficult for people with impaired vision or colorblindness to read;
  • barriers such as the lack of text alternatives (“alt text”) on images, the presence of which would allow a screen reader to convey the purpose of an image, including pictures, illustrations, charts, etc. that people who are blind would not be able to understand;
  • no captions on videos, which may prevent people with hearing disabilities from being able to understand information communicated in a video;
  • inaccessible online forms, making it difficult or impossible for people with disabilities to fill out, understand, and accurately submit forms; and
  • mouse-only navigation (lack of keyboard navigation), such that people who cannot use a mouse or trackpad will not be able to access web content.

Although the list is non-exclusive, as an initial matter, all website owners and operators should take steps to ensure that none of these barriers exist on their website(s) and mobile app(s). We discuss the benefits of adding compliance features, such as alt text, in an earlier alert.[4]

Guidance on How to Make a Website Accessible

The question left for all website owners and operators is, how do I make my website accessible to users and compliant under the ADA? Unfortunately, the guidance does not provide certainty on what is required. The DOJ still does not have a regulation detailing standards for digital accessibility. Instead, it reminds website owners and operators that the DOJ’s interpretation of the general nondiscrimination and effective communication provisions apply equally to online accessibility.

Website owners and operators are also advised that the lack of rigid standards that mark compliance has long been seen as a benefit of the ADA, affording businesses and state and local governments flexibility on how to ensure effective communication. Thus, the onus is on the business owners and the state and local governments to decide how to effectively communicate with their consumers. Just as courts have been doing in cases brought under the ADA, the DOJ refers website owners to existing technical standards as “helpful guidance,” without calling them mandates. These standards include the World Wide Web Consortium’s (“W3C”) WCAG, which are standards for web content accessibility promulgated by the international online community, and the Section 508 Standards, which the federal government uses for its own websites.

The DOJ is Prioritizing ADA Digital Accessibility Cases

What should business owners and states and local governments do in light of the guidance? The DOJ wants you to know that digital accessibility is a priority for enforcement. This is consistent with the Biden administration’s promise to aggressively enforce existing civil rights laws for people with disabilities, including the ADA. Thus, it is more important than ever to ensure your website and any mobile app(s) comply with the ADA.

As a business owner or a state or local government, the best thing you can do is be proactive in ensuring that your website(s) and mobile apps are accessible to all users. Each and every time your website or mobile app are modified, you need to ensure you are eliminating barriers on the new content. The WCAG guidelines are a great place to start. Eliminating barriers such as poor color contrasting and lack of alt-text will not only benefit your business by promoting inclusivity and enhancing the experience for your consumers, it will also lessen your risk of being the target of a civil litigation or government enforcement action.

If you have questions about ADA compliance, or are being investigated or facing a threat of litigation in this area, give us a call. Hinckley Allen lawyers clearly understand the WCAG standards and can help you identify and eliminate any barriers to your digital accessibility. We are also skilled in defending government enforcement actions, and have successfully defended a number of cases brought by individual and class action plaintiffs. Our primary goal is to ensure that you are protected – we can guide you on risk avoidance, craft digital accessibility standards, protocols and best practices, offer training, defend against DOJ inquiries, and help resolve cases quickly and cost effectively, should they arise.


[1] Digital Accessibility: Is Your Business’s Online Presence Exposing You to Litigation Risk?

[2] See 42 U.S.C.A. § 12132.

[3] See 42 U.S.C.A. § 12182.

[4] Digital Accessibility: Is Your Business’s Online Presence Exposing You to Litigation Risk?