DOJ Releases Guidance on ADA Compliance for WebsitesMarch 22, 2022 – Client Alert
The U.S. Department of Justice (“DOJ”) recently released guidance on Americans with Disabilities Act (“ADA”) compliance for websites. In recent years thousands of cases have been filed alleging that websites are inaccessible to the disabled because they are incompatible with screen readers, lack closed captioning for videos, lack text alternatives to pictures, or present other barriers to access. Such cases have proliferated, in part, because there is no clear and universal technical standard that websites can meet and be confident in their compliance with the ADA and its state law counterparts. To clear up some of the uncertainty, the DOJ has, for the first time, issued guidance on website accessibility requirements under the ADA.
Department of Justice’s Position on the Applicability of the ADA to Websites
The DOJ takes a broad position on the applicability of the ADA to websites. Jurisdictions differ on whether a business that is exclusively online is subject to the ADA, or whether a website must have a nexus to a physical place of public accommodation for the ADA to govern the website. The DOJ guidance does not explicitly endorse or disavow the “nexus” requirement, but does suggest that the DOJ leans towards the view that even websites without a nexus to a physical place of public accommodation could be subject to the ADA.
Similarly, while the DOJ does not adopt a single technical standard for accessibility, it does reference the “Web Content Accessibility Guidelines” (“WCAG”) as a standard for non-governmental websites. The guidance states that minor WCAG violations do not necessarily mean a website is non-compliant, but also cautions that a report from an automated tool stating that a website is accessible is not a guarantee that a website complies with the ADA. The guidance explicitly recommends pairing automated accessibility tools with manual reviews of websites to ensure accessibility.
Mitigating the Risk of ADA Claims
Businesses can mitigate the risk of ADA claims relating to their website by proactively engaging a reputable remediation service. As the DOJ notes, automated tools, while very cost effective, are not as reliable as accessibility consultants that pair technology with human engineers and experts. Websites should aim to achieve WCAG Level 2.0 AA compliance or higher, and the higher the level of compliance (i.e. WCAG Level 2.1 AAA), the lower the risk. If you receive a demand letter or lawsuit asserting a website access claim, you should not rely exclusively on the “nexus” requirement as a complete defense. Rather, it is important to contact counsel to develop a strategy for responding, and if necessary, remediating any accessibility issues.
Businesses have long sought clarity on the standards for website accessibility, and until now the DOJ has not taken a position. While many wish the DOJ would go further and be more specific as to the technical standards for compliance, the DOJ’s new guidance will still be a welcome first step for businesses seeking certainty regarding their legal obligations to make their websites accessible to the disabled.