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DOJ issues web accessibility guidance, but falls short of setting specific standards

published in McAfee & Taft EmployerLINC | March 21, 2022

For several years, plaintiffs’ law firms have been hammering businesses with website accessibility lawsuits, arguing that all places of public accommodation, including online retailers and hospitality businesses, must have websites that users with visual or other impairments can access. The lawsuits arise from Title III of the Americans with Disabilities Act, which generally provides that places of public accommodation must provide full and equal enjoyment of their goods and services to people with disabilities. 

The U.S. Department of Justice (DOJ), which enforces Title III of the ADA, has long taken the position that websites are covered under the law, but has refused to provide any official guidance for websites to follow.  That changed to some degree this week. 

For the first time, on March 18, the DOJ published its Guidance on Web Accessibility and the ADA.  However, businesses will be disappointed to learn that the guidance does not define “web accessibility” and does not describe with any specificity what standards business must follow. “Safe harbor” regulations exist when it comes to other physical accessibility standards, but the guidance fails to deliver the same with regard to websites.

Instead, the guidance lists a few common problems with website access, such as poor color contrast, no captions on videos, and lack of keyboard navigation. The guidance then lists resources that might be helpful to website developers in resolving or avoiding these issues.

The guidance offers no solace to businesses that would like a set standard to follow to ensure compliance with the law and offer protection from liability. The guidance references WCAG AA 2.1, an accessibility standard which many plaintiffs’ firms insist on businesses complying with in settlement agreements, but stops short of adopting this standard as the DOJ’s own. 

Nor does the guidance take a clear position on whether the ADA covers online-only businesses that are not associated with a physical place of business – an issue on which the courts are divided.

The guidance does make clear that automated checks of websites that purport to identify accessibility errors may not be sufficient, and recommends live user testing for websites.

Unless or until more specific safe harbor standards are developed, the flood of litigation is expected to continue.