February 7, 2023

Volume XIII, Number 38


February 06, 2023

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Justice Department Breaks its Silence Regarding Website Accessibility

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.

Jackson Lewis P.C. © 2023National Law Review, Volume XII, Number 81

About this Author

Joseph J. Lynett, Jackson Lewis, educational institutions lawyer, disabled students litigation attorney

Joseph J. Lynett is a Principal in the White Plains, New York, office of Jackson Lewis P.C. His practice focuses on assisting employers, businesses, and educational institutions in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees, as well as disabled students and members of the public.

Mr. Lynett defends employers, business and educational institutions in federal and state courts and before administrative agencies, including the U.S. Equal Employment Opportunity...

Jennifer Rusie Litigation Manager Jackson Lewis PC Nashville
Office Litigation Manager

Jennifer Rusie is the litigation manager of the Nashville, Tennessee, office of Jackson Lewis P.C. She focuses her practice on disability access, litigation, and advice and counsel. 

Jennifer has handled hundreds of disability access matters involving architectural barriers, website and mobile app accessibility, disclosures of accessible features at hotels, and Braille gift cards. These matters span the country and include class-action lawsuits. She is also well-versed in assisting clients with evaluating and remediating...

Mendy Halberstam Labor & Employment Attorney Jackson Lewis Miami, FL

Mendy Halberstam is a principal in the Miami, Florida, office of Jackson Lewis P.C and a Florida Bar Board certified specialist in Labor and Employment Law.

Working closely with his clients across a wide range of industries, Mendy has experience representing parties before the Equal Employment Opportunity Commission (EEOC) and related state and local agencies, and has handled cases involving claims of race, age, disability and sex discrimination, as well as sexual harassment, retaliatory discharge, wage and hour, and non-compete/restrictive covenant issues....

Joseph J. DiPalma Employment Attorney Jackson Lewis White Plains

Joseph J. DiPalma is a principal in the White Plains, New York, office of Jackson Lewis P.C. He represents employers of varying sizes and industries in a wide range of labor and employment matters, including collective bargaining, union grievances, employment litigation and traditional labor matters.

Joseph is a member of the firm’s Disability, Leave and Health Management Practice Group. He focuses a large part of his practice on counseling employers by providing creative solutions to the complex array of workplace...