In a letter to members of Congress last week, the Department of Justice (DOJ) clarified that it believes that Title III of the Americans with Disabilities Act (ADA) applies to the websites of public accommodations, even in the absence of affirmative regulations. The DOJ declined, however, to endorse the Web Content Accessibility Guidelines (WCAG) as a legal standard in the absence of further regulation.
DOJ Confirms It Believes the ADA Applies to Websites
The DOJ letter was in response to a letter from 103 members of Congress sent to Attorney General Jeff Sessions in June. The congressional letter had asked the DOJ to either issue website accessibility regulations or “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles.” The DOJ declined on both counts.
According to the response written by Assistant Attorney General Stephen E. Boyd, “The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.”
In Absence of Regulations, DOJ Declines to Adopt WCAG 2.0 as Legal Standard
But, in the absence of formal regulations—which the letter suggested will not be forthcoming anytime soon—Boyd noted that “public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication” and that “noncompliance with a voluntary technical standard for web accessibility does not necessarily indicate noncompliance with the ADA.”
This appears to be a shift from the DOJ’s practice pre-2017, when the agency referenced WCAG 2.0 Level AA standards in a number of settlements and court filings. The DOJ’s statement is, however, in line with court rulings on ADA Title III. In the majority of cases that have reached the question, courts have declined to expressly adopt WCAG 2.0 as a legal standard for evaluating accessibility, focusing instead on whether the plaintiff is able to access the website.
While the DOJ’s current position leaves organizations with some flexibility on how they will make their websites accessible, the practical result is the same for most organizations: the best strategy for building a website accessible to everyone—and for avoiding a lawsuit—is to ensure it complies with WCAG 2.0. AA success criteria.
- The DOJ still believes the ADA applies to websites, even if it is not acting to issue regulations
- The lack of regulations doesn’t release anyone from the need to make their websites accessible
- Organizations have a little flexibility in deciding how to make their websites accessible, but in most cases working to meet WCAG 2.0/2.1 AA success criteria will be the best strategy.
- Litigation will likely continue to increase.
The Bottom Line
If you are concerned about your organization’s risk of an ADA lawsuit, contact us for a complimentary Risk Assessment of your website. If you have already been sued, we can partner with your attorney to help you through the process.
For more information on U.S. Accessibility Laws and Digital Content Standards, download our North American Accessibility Laws and Digital Content Standards Infographic now.
This blog post is for informational purposes only and does not constitute legal advice.