On March 18, 2022, the Department of Justice ("DOJ") published guidance on website accessibility. The guidance focuses on how state and local governments (Title II of the ADA) and “public accommodations” (Title III of the ADA) can remove unnecessary barriers that make it difficult or impossible for people with disabilities to use websites. Unfortunately, the DOJ declined to weigh in definitively on several key issues that are at the heart of accessibility lawsuits.
First, the DOJ was notably silent on a key issue that has caused a Circuit split (see my previous blog post here)—namely, whether it considers standalone websites to be “places of public accommodation” that must comply with the ADA. For example, the First and Seventh Circuits have held that the phrase “public accommodation” is not limited to actual physical spaces whereas the Eleventh Circuit has held that websites—in and of themselves—are not places of public accommodation. On this issue, the DOJ’s guidance vaguely 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.” It remains unclear whether the DOJ considers a standalone website to be a place of public accommodation in the first instance.
Second, many had hoped that the DOJ would finally adopt a single technical standard for accessibility. Instead, the DOJ merely stated that the Web Content Accessibility Guidelines (WCAG) and Section 508 Standards “provide helpful guidance concerning how to ensure accessibility of website features.”
The DOJ was more specific in identifying the following examples of what businesses should do to make websites accessible:
- Color contrast in text. Sufficient color contrast between the text and the background allows people with limited vision or color blindness to read text that uses color.
- Text cues when using color in text. When using text color to provide information (such as red text to indicate required form fields), including text cues is important for people who cannot perceive the color. For example, include the word “required” in addition to red text for required form fields.
- Text alternatives (“alt text”) in images. Text alternatives convey the purpose of an image, including pictures, illustrations, charts, etc. Text alternatives are used by people who do not see the image, such as people who are blind and use screen readers to hear the alt text read out loud. To be useful, the text should be short and descriptive.
- Video captions. Videos can be made accessible by including synchronized captions that are accurate and identify any speakers in the video.
- Online forms. Labels, keyboard access, and clear instructions are important for forms to be accessible. Labels allow people who are blind and using screen readers to understand what to do with each form field, such as by explaining what information goes in each box of a job application form. It is also important to make sure that people who are using screen readers are automatically informed when they enter a form field incorrectly. This includes clearly identifying what the error is and how to resolve it (such as an automatic alert telling the user that a date was entered in the wrong format).
- Text size and zoom capability. People with vision disabilities may need to be able to use a browser’s zoom capabilities to increase the size of the font so they can see things more clearly.
- Headings. When sections of a website are separated by visual headings, building those headings into the website’s layout when designing the page allows people who are blind to use them to navigate and understand the layout of the page.
- Keyboard and mouse navigation. Keyboard access means users with disabilities can navigate web content using keystrokes, rather than a mouse.
- Checking for accessibility. Automated accessibility checkers and overlays that identify or fix problems with your website can be helpful tools, but like other automated tools such as spelling or grammar checkers, they need to be used carefully. A “clean” report does not necessarily mean everything is accessible. Also, a report that includes a few errors does not necessarily mean there are accessibility barriers. Pairing a manual check of a website with the use of automated checkers can give you a better sense of the accessibility of your website.
- Reporting accessibility issues. Websites that provide a way for the public to report accessibility problems allow website owners to fix accessibility issues.
Notably, the DOJ cautioned that automated accessibility checkers and overlays do not guaranty accessibility. That said, the DOJ acknowledged that “a report that includes a few errors does not necessarily mean there are accessibility barriers.” The DOJ also endorsed accessibility policies that “provide a way for the public to report accessibility problems.”
In sum, the DOJ's long-awaited guidance reaffirms the DOJ's commitment "to using its enforcement authority to ensure website accessibility for people with disabilities." However, it does little to resolve the key legal issues that render businesses vulnerable to accessibility lawsuits.