For several years, businesses have been hammered with website accessibility lawsuits that argued all places of public accommodation, including online retailers and hospitality businesses, must have websites users with visual or other impairments can access. The lawsuits arise from Title III of the Americans with Disabilities Act, which generally provides that places of public accommodation must provide full and equal enjoyment of their goods and services to people with disabilities. The U.S. Department of Justice (DOJ), which enforces Title III, has long taken the position that websites are covered under the law but has refused to provide any official guidance for websites to follow. That changed to some degree recently.
Guidance Lacking Detail
For the first time, on March 18, the DOJ published its Guidance on Web Accessibility and the ADA. Businesses will be disappointed to learn, however, that it doesn’t define “web accessibility” and doesn’t describe with any specificity what standards they must follow. “Safe harbor” regulations exist when it comes to other physical accessibility standards, but the guidance fails to deliver the same with regard to websites.
Instead, the guidance lists a few common problems with website access, such as poor color contrast, no captions on videos, and lack of keyboard navigation. It then lists resources that might be helpful to website developers in resolving or avoiding the issues.
The guidance offers no solace to businesses that would like a set standard to follow to ensure compliance with the law and offer protection from liability. It references WCAG AA 2.1, an accessibility standard many groups insist on businesses complying with in settlement agreements, but stops short of adopting the standard as the DOJ’s own.
Nor does the guidance take a clear position on whether the ADA covers online-only businesses that aren’t associated with a physical place of business, an issue on which the courts are divided.
The guidance does make clear that automated checks of websites that purport to identify accessibility errors may not be sufficient and recommends live user testing for websites.
Takeaway
Unless or until more specific safe harbor standards are developed, the flood of litigation is expected to continue.
Elizabeth Bowersox is an attorney in the Oklahoma City office of McAfee & Taft. She can be contacted at elizabeth.bowersox@mcafeetaft.com.