DOJ Guidance on Website Accessibility Provides Little Clarity

Website accessibility lawsuits continue to be big business for plaintiffs’ attorneys. Every year since 2018, over 2,000 of such suits have been filed in federal courts, and many other suits have been threatened and settled outside of the public eye. Part of the problem is the lack of clear guidance in this area. Although settlements provide some insights about what standards companies should use, they don’t shed light on thornier issues, such as whether 100% compliance with those standards – something many experts think is not realistic – is required.

In 2010, the Department of Justice issued an Advance Notice of Proposed Rulemaking seeking comments on a variety of questions concerning the scope, applicability, and feasibility of website accessibility. The rulemaking efforts were delayed several times until 2017, when they were put on an “inactive list” by the Trump Administration. DOJ hasn’t publicly addressed this area in much detail since then, until last month, when they issued new guidance. Unfortunately, although the guidance states that website accessibility is an enforcement priority, it doesn’t provide much clarity for businesses.

Although there are no official regulations governing website accessibility, DOJ writes that “existing technical standards provide helpful guidance concerning how to ensure accessibility of website features.” Among other things, DOJ points to the Web Content Accessibility (or “WCAG”) Guidelines that are incorporated into most settlements in this area. No surprise there. DOJ also states while “businesses must comply with the ADA’s requirements,” they “have flexibility in how they comply,” and can “choose” how to ensure accessibility.  Unfortunately, DOJ does not elaborate on what that means.

Where does leave us? Essentially, the same place we were before. Most companies will continue to attempt to code their websites according to the WCAG Guidelines, without knowing how much compliance is enough, and plaintiffs’ attorneys will continue to threaten or file suits for even small errors. Although DOJ’s reference to “flexibility” in compliance may provide a glimmer of hope, without more elaboration from DOJ, companies will likely be left to fight that out in court. Moreover, DOJ continues to hold companies to a very high standard of compliance (WCAG 2.1 AA) in settlement agreements, such as that it entered into with CVS earlier this month.

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