New Department of Justice ADA Web Accessibility Statement: Clear Guidance or More of the Same?

March 29, 2022

On March 18, the Department of Justice (DOJ) issued a statement that got many people excited, pointing to newly-published guidance on web accessibility under the Americans with Disabilities Act (ADA). In recent years, accessibility advocates, business leaders, and elected officials have urged the DOJ to provide clear guidance on exactly how and when the ADA applies to websites and apps. Whether this latest gesture delivered on that hope has been debated in the days following the announcement.

In the press statement, the DOJ said that the new guidance "explains how state and local governments (entities covered by ADA Title II) and businesses open to the public (entities covered by ADA Title III) can make sure their websites are accessible to people with disabilities in line with the ADA's requirements."

An explanation as to how businesses can be sure they meet ADA web accessibility requirements has been long-awaited — especially since the ADA has never been amended to include any mention of websites.

As eager parties started to look more closely at the full Guidance on Web Accessibility and the ADA, some became slightly less excited. The "how" piece does not seem to be there, at least not in the way many would have expected.

Here is what the DOJ announcement includes and notably leaves out.

DOJ reiterates that the ADA applies to websites

The Department of Justice made some powerful and probably necessary statements following its relative inaction on the pressing issue over the last few years. As web accessibility lawsuits and opinions surrounding them have heated up, the DOJ had been noticeably quiet aside from involvement in a small number of cases.

In the press statement, Assistant Attorney General Kristen Clarke for the DOJ's Civil Rights Division said:

We have heard the calls from the public on the need for more guidance on web accessibility, particularly as our economy and society become increasingly digitized.

This guidance will assist the public in understanding how to ensure that websites are accessible to people with disabilities. People with disabilities deserve to have an equal opportunity to access the services, goods and programs provided by government and businesses, including when offered or communicated through websites.

In the Guidance, it is explained that Title III prohibits discrimination against people with disabilities by businesses open to the public (also known as "public accommodations"). It is acknowledged that, "a website with inaccessible features can limit the ability of people with disabilities to access a public accommodation’s goods, services, and privileges available through that website—for example, a veterans’ service organization event registration form."

The Guidance then states:

For these reasons, 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.

There it is — clear as day. The Department of Justice, which enforces this aspect of the ADA, has published an unmistakable message directly linking web accessibility to ADA Title III compliance.

Similar logic is applied to web services of state and local governments under Title II, but we'll keep our focus on commercial web properties.

DOJ says web accessibility is a priority

There has been renewed energy during the Biden administration around what actions would be taken and what guidance would be issued regarding website accessibility.

In the Guidance, the DOJ stated:

When Congress enacted the ADA in 1990, it intended for the ADA to keep pace with the rapidly changing technology of our times. Since 1996, the Department of Justice has consistently taken the position that the ADA applies to web content.

This is important, especially as the absence of clear web guidance in the ADA has been a go-to defense for some who have decided to fight their web accessibility obligations in court. For many, there has never been a question as to whether the ADA should extend to websites. For others, a literal interpretation of the dated ADA has meant that such an extension shouldn't be inferred.

No prescribed standard for web accessibility was offered

In the press statement, the DOJ promised it had clarified "how" businesses can make sure their websites are accessible and, thus, ADA compliant. Section 508, for example, requires conformance with WCAG 2.0 standards. Looking for a similar directive regarding the ADA, this aspect of the Guidance has left many disappointed, feeling that the clarity they sought is still missing.

"Businesses and state and local governments have flexibility in how they comply with the ADA's general requirements of nondiscrimination and effective communication. But they must comply with the ADA's requirements," says the Guidance.

It explains further:

The Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.

Businesses and state and local governments can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.

While the Guidance does provide links to existing standards, such as WCAG and Section 508, it does not tell businesses which standard they have to follow or that they have to follow any standard at all. The Guidance, therefore, says that businesses have to ensure their websites are accessible but does not clearly state how to achieve or measure accessibility compliance.

The lack of a prescribed standard is not an acceptable defense for inaccessibility

While the new Guidance from the DOJ does not give us any more information tying ADA compliance directly to a voluntary standard like WCAG, it does reaffirm what many accessibility advocates and courts have held all along: With or without a prescribed web accessibility standard, digital inaccessibility of the goods and services covered under ADA Title III is a violation of civil rights.

This feels familiar to the opinion summary from the Ninth Circuit Court of Appeals in the closely-watched Domino's accessibility case. In it, the appeals court noted, "While we understand why Domino's wants DOJ to issue specific guidelines for website and app accessibility, the Constitution only requires that Domino's receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations."

We continue to recommend WCAG 2.1 conformance for ADA compliance

We strongly recommend that organizations make their websites accessible according to WCAG 2.1 A/AA specifications. As the industry standard, it can help businesses apply consistent and proven accessibility methods.

WCAG is commonly referenced as providing a satisfactory level of accessibility and it is trusted by accessibility experts around the world. Download your Easy Guide to ADA Compliance for Websites today.

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