DOJ Breaks Silence on ADA Web Accessibility with New Guidance | Morgan Lewis

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Following a period of silence on whether the Americans with Disabilities Act requires websites to be accessible to persons with disabilities, the US Department of Justice released new guidance on March 18 focusing on covered entities’ obligations under Title II (public entities) and Title III (places of public accommodation) of the act. While not explicit, the new guidance suggests a resurgence of the department’s earlier views that all public-facing websites—including websites of web-only businesses—are subject to Title III and must be accessible to persons with disabilities, and sheds light on the standards businesses may use to determine web accessibility.

WHAT IS WEB ACCESSIBILITY?

Web accessibility refers to the ability of users who rely on assistive technology and/or who have a cognitive or physical impairment to perceive and meaningfully engage with online content. For instance, many users with disabilities rely on screen‑reading software and a keyboard to navigate the internet. Such users may not have meaningful access to a website that isn’t designed to be compatible with screen-reading software and usable without a mouse.

WHAT IS A ‘PLACE OF PUBLIC ACCOMMODATION’?

Title III of the American with Disabilities Act (ADA) applies to “any place of public accommodation.”[1] Whether that phrase only refers to physical spaces such as brick-and-mortar stores, or whether it also refers to digital spaces, which would include websites, is the subject of a long-brewing circuit split. The US Courts of Appeals for the Third, Fifth, Sixth, and Ninth Circuits hold that only a real, physical space may qualify as a “place of public accommodation.”[2] The First Circuit, however, holds that a physical space is not necessary for a business to be a “place of public accommodation.”[3] The other circuits have not definitively weighed in on the issue.[4]

DOJ’S PRIOR ACTIONS RELATING TO WEB ACCESSIBILITY

In 2010, the Department of Justice (DOJ) initiated rulemaking activity to express its view that all business websites, including those unconnected to an actual, physical space, are “places of public accommodation” under Title III of the ADA. However, the DOJ then repeatedly postponed the release date for a final Notice of Proposed Rulemaking. Nevertheless, the DOJ continued to engage in enforcement activity against companies that had allegedly inaccessible websites, including web-only businesses; filed statements of interest in web accessibility litigation; and moved to intervene in web accessibility cases as a co-plaintiff.

These actions generally stopped during the Trump administration. While DOJ did not withdraw or change the agency’s official position on the applicability of Title III to websites, it removed web accessibility from its active rulemaking agenda, formally withdrew the prior notices of proposed rulemaking related to web accessibility,[5] and generally ceased participating in web accessibility litigation and engaging in enforcement actions.

DOJ’S RENEWED FOCUS ON WEB ACCESSIBILITY

Under the Biden-Harris administration, DOJ appears to have returned to the Obama-era view that all customer-facing websites are subject to Title III of the ADA, and its March 18 guidance, “Guidance on Web Accessibility and the ADA,” suggests the agency may be gearing up to do more in this space. In late 2021 and early 2022, DOJ entered into multiple settlement agreements relating to the accessibility of websites used to schedule appointments for obtaining COVID-19 vaccines. In addition, in the new guidance, DOJ:

  • emphasizes that it “has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web”;
  • identifies web accessibility as “a priority” for the agency;
  • states it “is committed to using its enforcement authority to ensure website accessibility.”

Although DOJ does not expressly say so, the new guidance suggests it is returning to the view that Title III of the ADA requires all private websites, even those of web-only businesses, to be accessible to persons with disabilities.

For example, under the heading “Title III Sample Cases,” DOJ lists a 2014 enforcement action against an online-only grocery‑delivery business, which resulted in a web accessibility settlement agreement. DOJ also lists a recent settlement with a pharmacy retailer relating to the accessibility of its vaccine registration portal. Section 12 of that agreement reflects DOJ’s view that the online vaccine registration portal is itself a “place of public accommodation” by using the phrase “Vaccine Registration Portal” where the relevant statutory provisions use the phrase “place of public accommodation.”

WEB ACCESSIBILITY STANDARDS

In the recent guidance, DOJ asserts that it requires public accommodations to ensure their websites are accessible, per the ADA’s “general nondiscrimination and effective communication provisions.” DOJ does not specify any website accessibility standards with which public accommodations must comply, and instead makes clear that businesses “can currently choose how they will ensure” web accessibility. DOJ does, however, identify the “Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards, which the federal government uses for its own websites,” as “helpful guidance” for companies subject to Title III of the ADA.

DOJ further provides non-exhaustive examples of “what businesses should do to make websites accessible,” such as text alternatives for images, synchronized video captions, and providing users with a means for reporting accessibility issues.


[1] 42 U.S.C. § 12182(a).

[2] See Earll v. eBay, Inc., 599 F. App’x 695, 696 (9th Cir. 2015); Magee v. Coca-Cola Refreshments, Inc., 833 F.3d 530, 534 (5th Cir. 2016); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114–15 (9th Cir. 2000); Ford v. Schering-Plough Corp., 145 F.3d 601, 612–13 (3d Cir. 1998); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1012–13 (6th Cir. 1997) (en banc).

[3] See Carparts Distrib. Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994).

[4] In 2021, a panel of the US Court of Appeals for the Eleventh Circuit ruled that websites are not subject to Title III of the ADA, but that decision was vacated on rehearing as moot. Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir.), vacated as moot, 21 F.4th 775 (Mem.) (11th Cir. 2021).

[5] Notice of Withdrawal of Four Previously Announced Rulemaking Actions, 82 Fed. Reg. 60,932 (Dec. 26, 2017).

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