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
The Guidance does not prescribe a specific set of standards with which businesses must comply, but it notes that the Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards (which the federal government uses for its own websites) can be helpful.
The WCAG, published by the World Wide Web Consortium (W3C), are the industry standard for digital accessibility. Each version of the WCAG includes three “conformance levels,” with the higher levels incorporating and expanding on the level(s) below. Conformance at Level A means that a digital property has met the bare minimum for accessibility. Level AA conformance means that a site or app should be reasonably accessible to most users. Level AAA conformance is optimal for users but is not always possible, so Level AA conformance is the standard that most businesses should aim to achieve. Level AA is also the standard mentioned in most ADA settlements.
The WCAG are designed to be broadly applicable to websites and mobile apps, and they address issues such as:
- Creating websites and apps that are compatible with screen readers used by individuals who are blind, including appropriate labeling of graphics and form fields
- Ensuring that no functionality requires the use of a mouse and that all tasks can be performed with keyboards and other input devices
- Providing users with enough time to read and use content
- Using icons and other visual elements that benefit people with cognitive disabilities
- Complying with standards for flashing content in order to avoid seizures induced by photosensitivity
For many years, WCAG 2.0 was the version cited in DOJ digital accessibility settlements, but since late 2021, the DOJ has required conformance to WCAG 2.1, which is identical to WCAG 2.0 except for 17 additional “success criteria.” Many of these success criteria are aimed at improving the mobile experience, which was not a priority when WCAG 2.0 was released in December 2008 (less than two years after the first iPhones hit the market). In light of the recent DOJ settlements, companies that have designed their websites and apps to conform to WCAG 2.0 should consider testing against the additional success criteria in version 2.1.
While the DOJ’s incorporation of WCAG 2.1 into settlement agreements is a recent trend, the standard itself has been an official W3C recommendation for nearly four years ‒ practically an eternity in terms of technological progress. W3C is currently working on two new sets of guidelines to address changes in how people interact with online and virtual environments. WCAG 2.2 adds new success criteria designed to increase mobile accessibility and address the needs of individuals with certain cognitive, learning, and visual disabilities. WCAG 3.0 is an alternative standard that will address currently unidentified issues to be covered in WCAG 2.x in new ways, and it will also likely include guidance related to wearables (e.g., smart watches, health monitors, fitness trackers); augmented reality/virtual reality; and the Internet of Things. Drafts of both standards (2.2 and 3.0) are available for public review, but it will probably be some time before they appear in DOJ settlements.
For now, companies should take note that WCAG 2.1 is fast becoming a de facto standard. Reed Smith can help brands understand their compliance obligations and avoid the DOJ’s increased enforcement activity.
- See, e.g., Harty v. West Point Realty, Inc., 28 F.4th 435, 443 (2d Cir. 2022) (affirming the district court’s dismissal of the lawsuit for lack of standing, finding that “[b]ecause [the plaintiff] asserted no plans to visit West Point or the surrounding area, he cannot allege that his ability to travel was hampered by West Point Realty’s website in a way that caused him concrete harm”); Gomez v. Tribecca, Inc., No. CV 20-6894 DSF, 2022 U.S. Dist. LEXIS 84695 (C.D. Cal. May 10, 2022) (after a bench trial, holding that plaintiff did not have standing to bring a website accessibility lawsuit under Title III of the ADA because he had not shown any downstream consequences resulting from his encounter with the inaccessible website, nor a genuine intent to return to the website).
Client Alert 2022-131
