On March 18, 2022, the Department of Justice (DOJ) released “Guidance on Web Accessibility and the ADA” (the Guidance), affirming the DOJ’s position that digital accessibility is required by the Americans with Disabilities Act (ADA) for state and local governments and businesses that are open to the public, and describing how those state and local governments and businesses open to the public can make sure that their websites are accessible to people with disabilities. The Guidance, together with recent trends in the DOJ’s ADA settlements, provides insight regarding the DOJ’s approach to digital accessibility cases.
The Guidance does not have the force of a rulemaking, but it does affirm that ensuring web accessibility for people with disabilities is a priority for the DOJ. Its release comes on the heels of years of relative silence from the DOJ on the subject. The DOJ withdrew four previously announced rulemaking actions in December 2017 and generally limited its enforcement activities in this area until late 2021. Since then, it has entered into several web accessibility settlements, mostly related to COVID-19 vaccination portals.
In addition, it is likely that the Guidance will contribute to a further increase in private enforcement of website accessibility through litigation. Federal website accessibility lawsuits rose by 14 percent in 2021, reaching a record high of 2,895 cases filed in federal courts across the country. Private plaintiffs may point to the Guidance as persuasive authority that the ADA applies to websites, which could make it more difficult for businesses to obtain dismissals of accessibility lawsuits and drive an increasing number of lawsuits. However, any increase in filings may be offset by several recent decisions that strictly enforce standing requirements in an attempt to deter plaintiffs who do not intend to actually use a business’s products or services.1