The Department of Justice (“DOJ”) issued Guidance on Web Accessibility and the ADA (the “Guidance”) regarding website accessibility under Title III of the Americans with Disabilities Act (“Title III”).  The Guidance explains at a high-level how state and local governments (entities covered by Title II of the ADA) and places of public accommodation (entities covered by Title III of the ADA and virtually any business that sells goods and services to retail consumers) can make their websites accessible to individuals with disabilities.  The Guidance discusses a range of topics, including the importance of web accessibility, barriers that inaccessible websites can create for people with disabilities, when the ADA requires web content to be accessible, and tips on making web content accessible.  The Guidance also notes that web accessibility for people with disabilities is a priority for the DOJ.

The Guidance makes clear that the requirements of Title III of the ADA apply to “all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”  Thus, the Guidance confirms the DOJ’s view that the websites of places of public accommodation must be accessible to individuals with disabilities.

Conspicuously absent from the Guidance is whether Title III of the ADA applies to the websites of online-only businesses that offer goods and services to the public. However, the Guidance includes a link to a prior settlement agreement the DOJ reached with an online-only business, suggesting that the DOJ’s current position is that online-only businesses may be covered under Title III, and that the DOJ will take action to enforce Title III of the ADA against companies who operate consumer websites, even in the absence of a physical place of public accommodation.

The Guidance also notes that the DOJ “does not have a regulation setting out detailed standards,” and therefore “businesses and state and local governments can currently choose how they will ensure that the programs, services, and the goods they provide online are accessible to people with disabilities.”   This has been the DOJ’s long-standing position on how businesses and governmental entities can comply with its obligations under the ADA to provide auxiliary aids and services to enable effective communication with individuals with sensory impairments.  The Guidance provides links to the Web Content Accessibility Guidelines (“WCAG”), but the Guidance is silent as to what level of conformance with the WCAG standards, if any, constitutes compliance with Title III of the ADA.

Notably, the Guidance does make clear that an accessibility report “that includes a few errors does not necessarily mean there are accessibility barriers.” At the same time, while “automated accessibility checkers and overlays that identify or fix problems with your website can be helpful tools, . . . a ‘clean’ [accessibility] report [from such accessibility tools] does not necessarily mean everything is accessible.”  The Guidance suggests it is ideal to pair a manual audit of a website with the use of automated accessibility evaluation software to give businesses a better sense of their website’s accessibility under real world conditions.

The most important takeaway from the Guidance is the fact that the DOJ has issued Guidance at all on this topic.  Indeed, on December 26, 2016, the DOJ Published a Notice of Withdrawal of Four Previously Announced Rulemaking Actions.  See 82 Fed. Reg. 60932 (December 26, 2017).  After years of silence on the issue of Title III of the ADA’s application to websites, the fact that the DOJ has turned its attention to this topic may indicate increased enforcement activity by the DOJ than in years past.

If you have questions, please reach out to your Jackson Lewis lawyer or our Disability Access Litigation and Compliance Resource Group.