In August 2023, the U.S. Department of Justice (DOJ) issued a Notice of Proposed Rulemaking (NPRM) that would make the Web Content Accessibility Guidelines (WCAG) the standard for compliance for state and local governments covered by Title II of the Americans with Disabilities Act (ADA). We discuss the details of how the proposed regulation would work in the section “Notice of Proposed Rulemaking Breaks New Ground” below. Notably, the DOJ refrained from proposing how to measure compliance with the law, choosing instead to review various options while recognizing that 100 percent compliance, 100 percent of the time, with any standard is simply not possible.

Quick Hits

• The DOJ is proposing to make the Web Content Accessibility Guidelines the ADA Title II compliance standard for local and state governments.
• If finalized, the standard would apply to websites and mobile apps, and would give governments two to three years for compliance, based on population.
• The DOJ explicitly recognized the impossibility of designing and maintaining a website that conforms in all respects and at all times to the Web Content Accessibility Guidelines, but what measure of conformance would be adopted is unclear.

Meanwhile, if the regulation is finalized, it will likely serve as a blueprint for a similar regulation directed at private-sector businesses that own or operate places of public accommodation covered by Title III of the ADA. As a result, private-sector businesses may want to design and maintain their websites in anticipation of the possibility, even likelihood, that the pending regulation gains the force of law under Title III of the ADA. In Section II below, we discuss the implications of the proposed Title II regulation on the private sector.

Notice of Proposed Rulemaking Breaks New Ground

If finalized, the NPRM would impose a broad and deep, comprehensive approach to making accessible the websites and mobile applications (apps) of state and local governments. Below are some important points from the proposed regulation.

Websites and mobile apps

The DOJ has definitively resolved the question by making clear that both websites and mobile apps would be covered by the new regulation.

WCAG 2.1, levels A and AA

The DOJ has also resolved debates about whether the WCAG will gain the force of law (it would!), which version of the WCAG (2.1, the current one, but not 2.2, which will be released soon), and which of the three levels of “success criteria” would be required (Levels A and AA, but not Level AAA).

Provides two to three years to achieve compliance

Even though the DOJ has repeatedly asserted that the state and local government websites that are the subject of the NPRM are already covered by Title II of the ADA, it has nonetheless provided for at least two years after the finalization of the regulation to comply with its terms. Smaller governments, based on the size of the population served, would have up to three years to achieve compliance.

Limited exceptions permitting inaccessible content

The proposed regulation recognizes limited exceptions permitting inaccessible content for:

• Archived content. Many websites have vast quantities of historical content that has been retained over years or even decades. One example would be the lectures and other speeches and presentations contained on a public university or museum website. The proposed rule would exempt state and local governments from having to make accessible such archived material as long as the archived material is not editable or otherwise subject to modification.
• Preexisting conventional documents. Likewise, many websites contain content in the form of PDFs, word-processed documents, presentation documents, and the like, provided that the documents already existed on the website before the compliance date and are not used as the means for current users to gain access.
• Third-party–posted web content. Content posted on the website by third parties would not need to be made accessible.
• Linked third-party content:. Linked materials on third-party websites would not need to be made accessible, unless the state or local government uses the linked materials to gain access to government services, programs, or activities.

“Shadow” websites allowed only in limited circumstances

Separate websites that provide equal functionality for persons with disabilities at a distinct website address are strongly disfavored, and would only be permitted for use if a single website cannot provide access to persons with disabilities. This clarifies what had long been suspected, namely, that the so-called “separate but equal” approach to website development could only be used where it is impossible to create a single accessible website.

Proposed regulation does not yet include a compliance measure

In adopting a compliance standard (WCAG 2.1, Levels A and AA), it is significant that the DOJ at the same time announced that it is impossible to maintain conformance to that standard to all portions of the website at all times. Thus, compliance with the ADA will mean less than 100 percent compliance 100 percent of the time. Instead, the DOJ presented and commented on various options for a measurable standard, and ultimately asked for input from all interested parties. Given the significance of this subject for both compliance and the outcome of future litigation in this area, we will address this issue at greater length in a separate article.

What the NPRM May Mean for the Private Sector and Its Websites

Even though the proposed regulation would apply only to “public entities” covered by Title II of the ADA (namely, state and local governments), the NPRM represents the most significant indicator of what the DOJ will do when it comes to private-sector websites. In the thirteen years since the DOJ first announced an intention to regulate in this area, this is by far the most specific and detailed the DOJ has ever been when it comes to guidance, including in its disappointing website guidance published in March 2022. There is, of course, no guarantee that the final Title II regulation will match this NPRM and likewise no guarantee that the Title III regulation would match the Title II regulation. Nonetheless, private-sector entities indicate that they are thirsty for guidance, any guidance, and now they have some very specific guidance.

Because many websites take months or even years and tens of thousands of dollars to develop, and sometimes more time and money to revise and reboot, private-sector entities may want to design with the DOJ’s current intentions in mind. Here are some likely takeaways for the private sector.

WCAG 2.2 will likely be the standard.

No surprise that WCAG won the day as it is really the only game in town when it comes to current, detailed standard-making in this area. It is interesting that the DOJ chose version 2.1 when version 2.2 will be released by the time any regulation is finalized. In doing so, the DOJ did not criticize the drafts of version 2.2 that have been circulated; it merely pointed to the adequacy of version 2.1 and the minor nature of the revisions in versions 2.2. It seems likely that the DOJ will propose version 2.2 (or the then-most recent version of WCAG) when it turns its attention to the private sector. Businesses may want to direct their attention to the most current version of WCAG, which will very soon be version 2.2.

Levels A and AA, but not AAA, will likely be the standard.

This compromise—Levels A and AA, but not the more demanding accessibility required by Level AAA—is also unsurprising. But still nice to see the DOJ commit to a firm position. Of course, the DOJ may reasonably expect more of the private sector than the public when it comes to expending resources. But that would be contrary to website settlements that the DOJ has reached with the private sector, which have also focused on Levels A and AA. Businesses can take a greater measure of comfort if they consider designing without attempting Level AAA compliance. If there are specific “success criteria” within Levels A or AA that do not work for a particular aspect of a business’s operations, then that business can also consider recording in writing a clear rationale for why that success criterion “fundamentally alters” the nature of the business’s operation that could become an important document in any litigation challenging that decision.

Exclusions for third-party content will likely be narrowly crafted.

While the NPRM would provide welcome exclusions for links to third-party content and for third-party content posted on a website, it is critical to understand the limits of those exemptions. Put most simply, any time a business is using another party’s linked website or third-party content on its own website as part of some privilege, amenity, or benefit of its business operations, one should expect that the content should be accessible. So, for example, if a business uses a third party’s payment software to purchase goods on the website, or reservation software to make reservations for its business, or map software to show the various locations of a business, such third-party content would almost certainly need to be accessible. Meanwhile, links to other websites noting attractions, hotels, and restaurants near the business are not part of the business’s own operations, so would not need to be made accessible.

Websites cannot be perfect (and would not need to be to comply with the ADA).

In perhaps the most helpful portions of the NPRM for those who design and maintain websites, the DOJ explicitly recognized that it is impossible to design and maintain a website that conforms in all respects and at all times to WCAG. This leaves unanswered critical questions about what measure of conformance will be adopted. But website purveyors should breathe a sigh of relief that a single instance, or even limited instances, of nonconformance would not violate Title II of the ADA, if this provision of the proposal is finalized as is. We can expect a similar standard to apply in Title III.

Meanwhile, some of the biggest questions for the private sector remain up in the air. Most notably, the private sector is left to speculate about at least these four major questions:

Will the private sector benefit from the same grace periods for compliance offered the public sector under the NPRM?

The provision of grace periods was not automatic and will be strenuously opposed by disability advocates, who will argue that public entities had decades of notice that they needed to make their websites accessible and more time is not necessary. The same could be said of the private sector. Yet, the proposal of grace periods recognizes that the development of a clear standard will require time for many websites to gain conformance. Moreover, the provision of different grace periods for smaller government entities (serving populations of under 50,000) suggests that the DOJ is already sensitive to the economic issues that many smaller businesses will face in bringing their websites into conformance with any standard.

What standard of WCAG conformance will be adopted to measure compliance with the ADA?

The NPRM ducked this complex and thorny question, opting instead to request input from the public about what it should do, while outlining some of the options. The answer to this question will surely dictate the success of the thousands of litigation claims that have been the scourge of the business community. (A separate article will be devoted to understanding the implications of this important topic.) The options importantly recognize that perfection is not possible and that valuing a business’s compliance efforts, and not exclusively the results, may be worth considering. Even though these important questions remain to be answered, businesses may want to take the DOJ’s hint that robust compliance efforts will not only yield better, more accessible websites, but may even supply a complete defense to a future litigation claim.

Will an “undue burden” defense remain viable?

Both the underlying statute (42 U.S.C. § 12182(b)(2)(A)(iii)) and regulation (28 C.F.R. § 36.303(c)) require efforts to provide “effective communication” with people with disabilities, but not if they create an undue administrative or financial burden. There is implicit recognition of these defenses both in the different compliance periods for government entities with different resources and in recognizing that websites cannot be perfect. It remains to be seen whether and to what extent the courts will recognize an undue burden defense to website compliance.

Will the creation of a clear federal standard fend off stronger legislative or regulatory efforts by the states?

The business sector experienced a serious scare earlier in 2023 when the California State Legislature was working on legislation that would have required strict WCAG compliance and made it very easy to bring and win lawsuits that failed to meet that strict standard. That legislative effort may return, but the hope is that by filling the void with some measure of reasonable regulation in this area, the states will feel less of a need to enter into an area that is best regulated on the federal level. Advocates of the California legislation justified their proposals by saying that the business community wanted a clear standard. Whether the NPRM provides that clear standard, obviating the need for more or different standards from the states, will be decided in time.

Looking Ahead

While the Title II NPRM applies only to state and local governments, the private sector can and should gain an important understanding and potential guidance from this regulatory action.