The Matrix

This guidance discussed, in accordance with Title III’s effective communication and nondiscrimination obligations for places of public accommodations, that covered businesses must ensure their programs, services, goods and web content are equally accessible by people with and without disabilities, However, the DOJ declined to provide a definitive directive to covered entities or the public at large on what makes a website accessible. As such, a continued lack of a clear website accessibility standard leads businesses to wonder if their online content is accessible or if they might be served with an expensive lawsuit or receive a demand letter from the DOJ, people with disabilities or advocacy organizations. 

Notably, while courts often look to private industry standards used to benchmark website accessibility, known as the Web Content Accessibility Guidelines (“WCAG”), the DOJ’s guidance declined to endorse any accessibility standard or method, instead referring to the WCAG as “helpful guidance”. This is despite the DOJ frequently requiring some form of WCAG compliance in many past ADA enforcement actions against businesses.

Below are some highlights of the accessibility considerations described in the DOJ guidance:

• The WCAG and the Section 508 electronic and information technology accessibility standards of the Rehabilitation Act of 1973 (used by the Federal government to establish accessibility compliance) are referred to as helpful guidance.
• Further, a non-exhaustive list of practices to facilitate web accessibility are discussed. The guidance refers to automated accessibility checkers and accessibility overlays as helpful tools but encourages they be used carefully.
• Also, a report identifying the presence or absence of accessibility barriers is not authoritative and such reports should be used in conjunction with manual accessibility audits.
• Websites are encouraged to provide color contrast between text and background fields, allow users to increase font size, and to use text to explicitly communicate the meaning of colors (e. stating that red means required). By doing so, this information can be communicated to users who navigate the web with screen readers.
• Also the guidance encourages websites offering interactive forms to give clear interactive instructions, allow users to navigate forms without using a mouse and text-label each field for screen reader use.
• Websites are encouraged to provide a way for users to report accessibility issues.
• Notably, the guidance encourages adding short descriptive text captioning to images and providing synchronized video captioning.

The DOJ emphasizes that ensuring web accessibility is an enforcement priority for the agency so the ADA maintains pace with evolving technology such that publicly available goods, services, programs and activities of businesses (including their web content) are accessible.

As such, businesses may benefit by prioritizing and implementing proactive web accessibility remediation to meet the ADA’s nondiscrimination and effective communication requirements. These efforts, in turn, could also limit related litigation risk and increase opportunities to service people with disabilities by providing equal access to individuals with and without disabilities.