There has been a steady increase in the number of lawsuits brought about because of the lack of guidance about laws covering current digital technology. At this point, DOJ (Department of Justice) guidelines confirm that ADA (Americans With Disabilities Act) applies to website accessibility, and is endeavoring to bring some clarity to the situation after pressure from businesses and Congress.
As Seyfarth Shaw reported, in June of 2018, 103 members of the House of Representatives from both parties asked then-Attorney General Jeff Sessions to “state publicly that private legal action under the ADA concerning websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” The letter urged the Department of Justice (DOJ) to “provide guidance and clarity about website accessibility under the … ADA.”
Many companies nationwide have been hit with lawsuits that claim that their websites are places of public accommodation under Title III of the Americans with Disabilities Act (ADA) and, therefore, must be accessible to all. In theory and the spirit of the ADA, this is reasonable, but there have been gaps and delays getting many businesses to comply, and some are paying dearly for it.
Common website problems, including incompatibility with screen-reading software and mouse-only access, can create barriers for disabled individuals. In response to the letter sent by 103 members of the U.S. House of Representatives, the DOJ issued a statement that makes clear that it considers the ADA to apply to websites.
Unfortunately, the statement provides no clarity on what specific technical standards must be followed, but it makes clear that the government expects companies to make an effort to make their websites accessible to individuals with disabilities. Pretty vague, but it’s a start.
Part of the DOJ’s statement offers some clarity and guidelines for going forward: “Noncompliance with a voluntary standard for website accessibility does not necessarily indicate noncompliance with the ADA.” This is significant because until that statement and with no specific technical guidelines previously in place from the DOJ, plaintiffs’ attorneys, advocacy groups and companies have been assuming that a set of guidelines known as “WCAG 2.0 and 2.1” were the applicable guidelines to follow.
Although the guidelines have no force of law, plaintiffs’ attorneys have often claimed that websites that have not met the WCAG Web Content Accessibility Guidelines) violate the ADA. Now the DOJ’s letter makes clear that it doesn’t view compliance with every aspect of WCAG 2.0 and 2.1 as specifically required under the ADA. Instead, the statement provides that “public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication.”
While it’s too soon to tell if these flexible guidelines will stem the tide of accessibility lawsuits, it should enable businesses to attempt to prove that their websites or businesses are accessible, despite not meeting every aspect of WCAG 2.0 or the recently released WCAG 2.1 guidelines. It gives them some breathing room to get their websites accessible, but it should be understood that businesses covered by the ADA that have taken no proactive steps to attempt any sort of accessibility on their websites still place themselves at legal risk for an accessibility lawsuit.