Towards the end of July, the Department of Justice (DOJ) announced plans to publish new rules for Title II of the Americans with Disabilities Act (ADA).
We’ve written a detailed breakdown of the DOJ’s Title II announcement, which explained that the DOJ intends to provide “technical standards to assist public entities in complying with their existing obligations" for web accessibility. The announcement is notable because it will be the first time that specific web accessibility regulations are defined under the ADA.
Essentially, the DOJ is widely expected to propose evaluation criteria based on the Web Content Accessibility Guidelines (WCAG) version 2.1, the current consensus standards for digital accessibility. If successfully implemented, the new rules would improve clarity for organizations that need to comply with Title II.
That leads to a crucial question: How would new Title II standards affect private businesses?
New web accessibility standards for Title II won’t apply to private businesses — at least, not directly
Organizations that don’t receive federal funding aren’t required to follow Title II, but they must comply with Title III of the ADA, which prohibits discrimination on the basis of disability in “places of public accommodation.” According to the DOJ, websites qualify as places of public accommodation.
Title III doesn’t contain technical standards for websites, and the proposed Title II standards won’t apply to private organizations. However, that doesn’t mean that Title III compliance is optional.
Court decisions have affirmed that Title III applies to websites
The most infamous ADA lawsuit, Robles v. Domino’s Pizza, LLC, established that the ADA doesn’t need technical standards to be enforceable. Plaintiff Guillermo Robles, who has a vision disability, accused the pizza chain of violating Title III of the ADA by providing digital products that were inaccessible for screen readers (software that converts onscreen text to audio or braille).
Domino’s argued that the ADA doesn’t contain technical standards, so it’s not applicable to websites — but the Ninth Circuit Court of Appeals disagreed.
While the Ninth Circuit found that Domino’s had no legal obligation to follow WCAG, they agreed with the plaintiff that “the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.”
And while the DOJ acknowledges that private businesses “have flexibility" in determining how they should comply with Title III, the Department recommends WCAG Level AA and the government’s own Section 508 standards (which are based on WCAG) as “helpful guidance" for ensuring compliance.
In other words, while private businesses can decide how to accommodate customers with disabilities, they must still provide reasonable accommodations. WCAG is an objective framework for making those improvements, whether or not the guidelines become an official part of the ADA.
Title II website accessibility standards may lead to new Title III standards
The DOJ doesn’t make new rules overnight, and any new Title II standards will need to go through a long process before becoming official regulations. In April 2023, the Department plans to issue a Notice of Proposed Rulemaking (NPRM), and public comments will be accepted no later than June 2023.
But if (and when) WCAG 2.1 becomes an official part of Title II, the DOJ may apply similar rules to Title III. That will open up a number of important questions, which the DOJ will need to address:
- How long will businesses have to meet the new standards?
- Will the technical standards apply to third-party content?
- Will businesses need to publish accessibility statements or demonstrate proof of compliance?
- How will the government determine whether a certain accessibility remediation creates an “undue burden" for a private organization?
We’re not attorneys, but we expect that any proposed Title III changes would be challenged — at great expense — by defendants in ADA litigation cases.
However, the DOJ’s actions show that the federal government is committed to clearing up confusion about website accessibility. Ultimately, that’s good news for government agencies, private organizations, and individuals with disabilities.
Following WCAG Level AA provides the best path to accessibility compliance
For business owners, here’s the bottom line: Website accessibility lawsuits are expensive, and while an accessible website requires an investment, it provides excellent business benefits.
Organizations that take a proactive approach to accessibility will be well positioned to benefit from any changes in the ADA’s Title III requirements. To take the first steps, review our WCAG Level A/AA Checklist or send us a message to discuss your accessibility initiative.