New ADA Web Accessibility Advice from DOJ Unclear
On March 18, 2022, the Department of Justice (DOJ) published web accessibility requirements under the ADA – Americans with Disabilities Act.
Unfortunately, while the DOJ has the right intentions, these guidelines have left businesses and government departments with lingering questions about how to stay compliant.
Conflicting Court Decisions
It appears that multiple courts have different opinions about whether the ADA even applies to websites at all.
In one case that involved Domino’s Pizza, courts in the Ninth Circuit ruled the brand violated ADA because its website and mobile application were not completely accessible to those with visual impairments. The court’s decision was based on the fact that the ADA applies to websites and apps that facilitate access to goods and services offered by places of public accommodation.
On the other hand, the Eleventh Circuit is of the opinion that based on the plain language of the statute, websites are not subject to the ADA. This led to the dismissal of a case brought forward by a visually impaired customer against a supermarket, claiming the lack of screen-reader software on its website is a violation of the ADA.
Then there are the federal courts in New York, which also have conflicting opinions about web accessibility and the ADA. One judge from the Eastern District of New York believes that stand-alone websites are not deemed places of public accommodation if they are not connected to a physical store.
This came through in a case where a deaf plaintiff claimed that Newsday was in violation of the ADA because its videos didn’t have closed captioning. The court ruled in favor of Newsday.
Clearing the Confusion
To make compliance easier to understand and attain, the DOJ has since released its Guidance on Web Accessibility and the ADA. This document simplifies web accessibility and its connection to the ADA for businesses that are open to the public, as well as state and local governments.
The guide is in response to the DOJ’s firm position that the ADA applies to all goods, services, or activities offered by public accommodations, including those offered on the web. Public accommodations include banks, retail stores, food and drink establishments, hotels, hospitals, medical offices, sports arenas, and auditoriums.
The Americans with Disabilities Act requires all websites that fall into one of these categories to provide full and equal access to products, services, facilities, and activities to those living with disabilities.
It is the responsibility of website owners to make the changes necessary for this to be possible, including the implementation of communication aids. Examples of this are assistive listening devices, voice recognition software, screen readers, captions, and interpreters.
Businesses are encouraged to evaluate existing technical standards that the federal government uses for its websites and apply the same or similar to meet ADA requirements.
However, know that the DOJ doesn’t have set guidelines on how to meet ADA standards, just recommendations. Businesses have the freedom to choose how they want to comply, but they need to comply.
While the DOJ’s latest guidelines help simplify ADA compliance, information gaps still remain. For one, it still doesn’t clearly state whether a website definitely needs to be connected to a brick and mortar store for the ADA to apply. There’s also no clarity on how much flexibility businesses have during the compliance process.
While the DOJ’s ADA Standards for Accessible Design document is detailed and specific, unfortunately, the same can’t be said for the latest web accessibility guidelines.
So, with so many questions about compliance still hanging in the air, the state of web accessibility litigation will more than likely remain as is.