Reed Smith Client Alerts

On July 27, 2022, the U.S. Department of Justice (DOJ) announced its intent to publish a Notice of Proposed Rulemaking (NPRM) in 2023, in an effort to “assist public entities in complying with their existing obligations to make their websites accessible to individuals with disabilities” under Title II of the Americans with Disabilities Act (ADA). Title II of the ADA applies to state and local government entities, but proposed Title II regulations may shed light on the approach the DOJ is likely to take in future rulemakings that directly impact private businesses. As discussed in a previous client alert, the DOJ recently released guidance indicating that web accessibility is a DOJ priority (the Guidance) after it withdrew several earlier rulemaking actions on the subject in previous years. If the DOJ does release an NPRM next year, it may provide clarity on some questions that remain in the wake of the Guidance.

Role of the Web Content Accessibility Guidelines

In the Guidance, the DOJ noted that the Web Content Accessibility Guidelines (WCAG) “provide helpful guidance concerning how to ensure accessibility of website features.” The DOJ may clarify in the NPRM whether or not conformance with WCAG can serve as a “safe harbor” or presumptive evidence of compliance with digital accessibility obligations, an approach that has been advocated by members of the business and disability communities. In a recent letter, several senators, including Senator Tammy Duckworth (D-Ill.), urged the DOJ to incorporate WCAG 2.1 Level AA (the WCAG version cited in recent ADA settlements) into new ADA regulations.

Applicability to other technologies

Because the DOJ statement only refers to web accessibility, whether the NPRM will directly address access to other technologies, including mobile applications, kiosks, and virtual reality experiences, remains unclear. Some courts have held that in certain instances applicable to private businesses, mobile applications are covered under the ADA1, and the WCAG contains guidelines for accessible mobile experiences. As such, it will be interesting to see whether the NPRM will address the applicability of the ADA to technologies other than websites.


The NPRM planned for 2023 will only address the obligations of public entities covered under Title II of the ADA. Even though this rulemaking will not impact private entities directly, it may serve as an indication of what might be included in future rulemakings concerning private businesses.

For now, public and private entities covered under the ADA should take note that web accessibility is a priority for the DOJ, and they may want to consider aiming for WCAG 2.1 Level AA conformance in anticipation of forthcoming regulations.

  1. See, e.g., Robles v. Domino's Pizza, LLC, 913 F.3d 898 (holding that “the ADA applies to Domino’s website and [mobile] app, which connect customers to the goods and services of Domino’s physical restaurants.”).

Client Alert 2022-212