On March 18, 2022, the Department of Justice (“DOJ” or “Department”) published guidance on web accessibility and the Americans with Disabilities Act (“ADA”). The guidance addresses how state and local governments (covered by Title II of the ADA) and businesses that are open to the public (otherwise known as “places of public accommodation,” covered by Title III of the ADA) can ensure their websites are compliant with the ADA.

Content of the guidance. The guidance gives some examples of website accessibility barriers, such as poor color contrast; using color alone to give information; lacking alternative text (“alt text”) on images and photos; not captioning videos; having fillable forms that are inaccessible; or having mouse-only navigation, which may not be compatible with screen reader technology often utilized by individuals who are blind. The guidance also reiterates the Department’s stance on website accessibility, which states: “the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.” The guidance ends by emphasizing that website accessibility is a priority of the DOJ and highlights some recent matters the Department has pursued under Titles II and III, including recent agreements reached with Rite Aid Corp. and H&R Block regarding inaccessible websites.

Nothing new. On a frustrating note, this guidance does not provide any substantially new information above and beyond what the DOJ has stated previously. Although it mentions as possible resources the Web Content Accessibility Guidelines (“WCAG”) (a third-party standard, discussed below) and Section 508 Standards (which are the standards that apply to the federal government), once again, the Department has declined to adopt any standard a website must meet to “comply” with the ADA—leaving businesses with more questions than answers. State and federal courts across the country continue to take varying approaches to this issue, adding to the state of uncertainty.

For example, under the current “gold standard” of the WCAG—version 2.1—there are three levels of success criteria. Success criteria are testable specifications for a website and the levels range from A to AAA, from lowest to highest. If a business’s website is fully compliant with WCAG 2.1 AA standard, but fails to conform to the lofty AAA standard, has it violated the ADA? Again, the answer is unclear. Also unhelpfully, the WCAG standards state: “Note that even content that conforms at the highest level (AAA) will not be accessible to individuals with all types, degrees, or combinations of disability . . .” So even a website that is fully compliant with the highest level of the current website standards may result in an individual with a certain type of disability being unable to gain access to the functions and features. And we note that “fully compliant” is a bar that may be impossible for some websites to achieve without a complete overhaul; “substantial” compliance is often more readily achievable, but again, it is unclear what courts would consider to be substantial and whether courts would consider substantial compliance to be sufficient.

Unclear standards and Congressional inaction. Ideally, Congress would step in and amend the ADA to provide clearer answers on compliance. Some House representatives are seeking to do just that with the Online Accessibility Act (H.R. 1100), re-introduced last February. This Act would amend the ADA to include a Title VI, which would require any consumer-facing website or mobile application to be “in substantial compliance” with the WCAG 2.0 Level A and Level AA standard or provide an alternative means of access for individuals with disabilities that is equivalent to the content available on the website. This would provide some much-needed clarity for businesses struggling to understand their current Title III obligations. Unfortunately, just like the previous version of this bill, the Act looks doomed again to die in committee.

Litigation Explosion & Proactive Steps to Take Now. The uncertainty in this area has resulted in an explosion of demand letters and lawsuits from the plaintiff’s bar. Because “compliance” with the ADA is poorly defined in many circuits, courts may be hesitant to grant motions to dismiss. Therefore, these suits are often difficult and costly to defend, and many result in a quick settlement with a promise to remediate a website within a certain period of time.

Almost every business owner would agree that accessibility for customers and potential customers, even if not legally required, is the right thing to do and is good for business. Despite the lack of clear standards in this area, the best defense is a good offense. Businesses should consider taking steps now to remediate any website that is substantially out of compliance with the WCAG 2.1 AA standards. This includes establishing a process to test and monitor accessibility of the website and its content moving forward. Unless and until we receive additional guidance from Congress or the U.S. Supreme Court, taking these proactive steps may be the best way to avoid being hit with litigation in this area.