DOJ’s Guidance on Web Accessibility and the ADA

Today’s blog entry last week’s guidance issued by the DOJ on web accessibility and the ADA. That guidance can be found here. This blog entry does have categories but not the typical ones. The categories are highlights of guidance, and thoughts/takeaways. I can’t see how the reader is going to want to do anything but read the whole thing.

 

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Highlights

 

1. Common examples of website accessibility barriers include: poor color contrast; use of color alone to give information; lack of text alternatives on images; lack of captioning on video; inaccessible online forms; and mouse only navigation. This list is not exclusive.
2. Many state and local governmental services, program, and activities are now being offered on the web. Since a website with inaccessible features limits the ability of people with disabilities to access a public entity’s program, services, and activities through that website, the DOJ has consistently taken the position that the ADA’s requirements apply to all the services, program, or activities of state and local governments, including those offered on the web.
3. 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. Accordingly, DOJ 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.
4. Automated accessibility checkers and overlays identifying or fixing problems with a website can be helpful tools, but they need to be used carefully.
5. 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.
6. The Department of Justice does not have a regulation setting out detailed standards for Internet accessibility, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.
7. 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. Even though businesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication, they still must ensure that the programs, services, and goods that they provide to the public—including those provided online—are accessible to people with disabilities.
8. Existing technical standards provide helpful guidance concerning how to ensure accessibility of website features. These include the Web Content Accessibility Guidelines (WCAG)and the Section 508 Standards, which the federal government uses for its own websites.

 

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Thoughts/Takeaways

 

1. I view the document as being very unhelpful on a practical level (the discussion in the guidance is far too general to be of much use with respect to specific situations). The guidance does have the effect of making clear that state and local governments as well as companies all need to prioritize website accessibility and that the DOJ is watching. The guidance was actually posted in a beta format. So, the beta posting has me wondering if it isn’t some kind of trial balloon that might lead to reactivating the regulatory process.
2. While this guidance doesn’t extend to mobile phones, which have a completely different interface and accessibility options and is regulated by the FCC, one has to figure that the FCC is watching as well.
3. For the practical level, really getting into the weeds of accessibility and maximizing the chances of your website being accessible for a variety of individuals with disabilities, WCAG 2.1 et. ff. (3.0 is also on the horizon), is definitely the way to go. WCAG also explains the basic principles it uses rather than just gives examples of problem areas.
4. There are no regulations out there with respect to Internet accessibility (they were pulled by the Trump administration), and so this guidance runs into the same issue with respect to its persuasive authority as the HUD animal circular does vis a vis Kisor v. Wilkie, which case we discussed here. That is, it is doubtful just how much persuasive authority this guidance is.
5. Unusual to see voice dictation technology explicitly mentioned when it comes to website accessibility. I have been using voice dictation technology for a long time and it is great to see that acknowledgment.
6. With respect to the title III discussion, I am very confused about how DOJ describes the entities covered by title III. As we know, those entities are “places of public accommodation,” and can be any of those listed in 42 U.S.C. §12181(7). A place of public accommodation is a term of art and not at all the same thing as a business open to the public. Even so, for reasons unknown the guidance refers to title III entities as businesses open to the public. It also refers to public accommodations but not to, “places of public accommodation,” which is the proper reference in the statute. In fact, the term “place of public accommodation,” appears nowhere in the guidance. Don’t get me wrong, a strong argument can be made then an Internet only facing business is a place of public accommodation per this blog entry, but that is not at all the same thing as changing the way title III entities are described (“place of public accommodation,” v. “business open to the public.)”
7. The guidance seems to encourage using overlays. Readers of this blog entry know that overlays are a huge problem and frequently make things worse for persons with disabilities who use screen readers. That said, the guidance does say that nothing beats a manual check of the website as well as using automated tools in order to ensure maximum accessibility.
8. The absence of regulatory standards means that everyone is free to choose how they ensure accessibility for persons with disabilities for anything they offer online. I used to think that was a benefit, but I am no longer so sure of that. As a preventive law matter, go with WCAG. Remember, the legal standard is meaningful accessibility. Also, remember the ADA requires an individualized analysis. So, beta testing any online offerings by having persons with a variety of disabilities try the site out is a really good idea.
9. While there are no regulations dealing with Internet accessibility, there are most certainly regulations dealing with effective communications, which we have discussed many times and in a variety of different contexts, such as here and here. Don’t forget about effective communication obligations when dealing with Internet accessibility issues.

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