The US Department of Justice (DOJ) recently released an update to its official guidance on web accessibility under Titles ll and lll of the Americans with Disabilities Act (ADA). This follows a long period of silence from the DOJ as to whether the Americans with Disabilities Act applies to websites. The new guidance addresses how state and local governments, as well as ‘‘public accommodations’’ or businesses open to the public, should ensure their websites are accessible for all visitors, and provides some common examples of website barriers.
Is the New Guidance Important?
The new guidance is certainly significant, not least because it represents the Biden administration's first official announcement on whether the ADA applies to websites. The short answer? It does. But there is, as always with website compliance law, a little more nuance to the story. Let’s take a closer look at why the guidance is important, as well as a few criticisms that have been leveled at the new statement and guidance.
At its core, the updated guidance is another important step towards making universal web accessibility requirements more understandable, and therefore easier to comply with for all. In this spirit, it very consciously employs a plain language approach when explaining why website accessibility matters.
When discussing the updated guidance, Assistant Attorney for the Justice Department’s Civil Rights Division, Kristen Clarke, commented that ‘‘We have heard the calls from the public on the need for more guidance on web accessibility, particularly as our economy and society become increasingly digitized. This guidance will assist the public in understanding how to ensure that websites are accessible to people with disabilities. People with disabilities deserve to have an equal opportunity to access the services, goods and programs provided by government and business, including when offered or communicated through websites’’
The guidance serves to remind covered entities that web accessibility is a top priority for the DOJ, and contains some examples of past settlements that have been reached between state and local governments and businesses. And, while the DOJ acknowledges that no regulation that currently exists sets out detailed web accessibility standards, they also reiterate that their ‘‘longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.’’
In simple terms, the DOJ’s position remains that the ADA’s requirement to provide effective communication for persons with disabilities applies to the goods, services, programs or activities offered by state and local governments and businesses on the web.
Criticisms of the New Guidance
Some believe that the DOJ should take a far stronger stance on web accessibility, however, and view the new guidance as being just another example of a greater failure to take any truly meaningful action or provide a coherent legal criteria by which compliance can be objectively measured and assessed. In his recent article, Why We Should Be Disappointed By DOJ’s Web Accessibility Guidance, accessibility professional Ken Nakata gives voice to these concerns, discussing why he believes that clear web accessibility regulations are needed.
In his and many other people's eyes, the DOJ must take far more definitive legal steps in order to resolve a number of cloudy issues that can leave entities vulnerable to lawsuits. These issues include but are not limited to questions around which guidelines and standards should be used in assessing compliance, how ‘‘compliance’’ is to be defined, and whether an alternate method of access is acceptable in lieu of making a website itself accessible?
In addition, the lack of a federal legislation on web accessibility compliance is spurring local government’s into taking action to provide more concrete standards, such as the State of Colorado, that now requires local gov to meet WCAG 2.1 requirements, as well as the State of Illinois mandating similar guidance for K-12 schools.
While the guidance makes it plain, for example, that businesses and state and local governments must comply with ADA requirements, it also states that such entities have flexibility in how this compliance is achieved. That the guidance neglects to mention what is actually meant by ‘‘flexibility’’ and fails to provide any specific options for achieving compliance is a major source of frustration for some, who feel that clear regulations are desperately needed to replace the ‘unenforceable guidance’ that is currently being offered.
While it is certainly true that the new guidance contains no clear cut answers to many of the above questions, nor any revelatory legal insights for experienced legal practitioners, it is still likely to be of real practical benefit to accessibility newbies. In fact, the DOJ’s own press release states that the guidance is intended to offer ‘‘plain language and user-friendly explanations to ensure that it can be followed by people without a legal or technical background.’’
The Bottom Line
Despite the feeling of ambiguity in some quarters with regards to how accessibility is to be officially measured and achieved from a legal standpoint, the underlying message from the DOJ remains loud and clear: organizations must ensure that their programs, services and goods are accessible to all people, irrespective of their ability.
For a deeper dive into the legal issues surrounding web accessibility, why not take A Look at the Legal Landscape of Web Accessibility Compliance blog post by attorney Jessica Youngs from Octans Legal.
One thing that is certain is that web accessibility legislation is not going anywhere, and if this updated guidance serves to reinforce anything, it is the fact that the current US administration is serious about getting website accessibility back on the agenda.
Whether we will eventually see the DOJ go further and enact web accessibility regulations, however, remains to be seen.