On March 18, 2022, the Department of Justice (“DOJ”) released guidelines on website accessibility. The guidelines focus on how state and local governments (ADA Title II) and “public accommodations” (ADA Title III) can remove unnecessary barriers that make it difficult or impossible to use sites. Web by people with disabilities. Unfortunately, the DOJ has declined to definitively rule on several key issues that are at the heart of accessibility lawsuits.
First, the DOJ has been particularly silent on a key issue that caused a split in the circuit (see Caren Decter’s previous article here) – whether it considers stand-alone websites to be “places of public accommodation”. which must comply with the ADA. For example, the First and Seventh Circuits held that the term “public accommodation” is not limited to actual physical spaces, while the Eleventh Circuit held that websites – in and of themselves – are not places of public accommodation. On this issue, DOJ guidance vaguely states that “the Department has always taken the position that the requirements of the ADA apply to all goods, services, privileges, or activities offered by public accommodations, including those offered on the Web”. It’s still unclear whether the DOJ considers a standalone website a public hosting location in the first place.
Second, many had hoped that the DOJ would finally adopt a single technical standard for accessibility. Instead, the DOJ simply stated that the Web Content Accessibility Guidelines (WCAG) and Section 508 standards “provide helpful guidance on how to ensure accessibility of website functionality.” .
The DOJ was more specific in identifying the following examples of what companies should do to make websites accessible:
- Color contrast in text. Sufficient color contrast between text and background allows people with low vision or color blindness to read text in color.
- Text signals when using color in text. When using text color to provide information (such as red text to indicate required form fields), it’s important to include text markers for people who don’t see the color. For example, include the word “required” in addition to red text for required form fields.
- Text Alternatives (“Alt Text”) in Images. Text alternatives convey the purpose of an image, including images, illustrations, graphics, and more. Text alternatives are used by people who cannot see the image, such as people who are blind, and who use screen readers to hear the alternative text read aloud. To be useful, the text must be short and descriptive.
- Video captions. Videos can be made accessible by including synchronized captions that are accurate and identify all speakers in the video.
- Online forms. Labels, keyboard access and clear instructions are important for forms to be accessible. Labels help people who are blind and use screen readers to understand what to do with each form field, such as explaining what information is in each box on a job application form. It’s also important to ensure that people who use screen readers are automatically notified when they enter a form field incorrectly. This includes clearly identifying the error and how to resolve it (such as an automatic alert telling the user that a date was entered in the wrong format).
- Text size and zoom capability. People with visual impairments may need to be able to use a browser’s zoom capabilities to increase font size so they can see things more clearly.
- Headings. When sections of a website are separated by visual headings, integrating these headings into the layout of the website when designing the page allows people who are blind to use them to navigate and understand the layout of the page.
- Keyboard and mouse navigation. Keyboard access means users with disabilities can navigate web content using keys instead of a mouse.
- Accessibility check. Automated accessibility checkers and overlays that identify or fix problems with your website can be useful tools, but like other automated tools like spelling or grammar checkers, they should be used with care. A “clean” report does not necessarily mean that everything is accessible. Also, a report that contains a few errors does not necessarily mean that there are accessibility barriers. Combining a manual website check with the use of automated checkers can give you a better idea of how accessible your website is.
- Report accessibility issues. Websites that allow the public to report accessibility issues allow website owners to address accessibility issues.
Notably, the DOJ warned that automated accessibility checkers and overlays do not guarantee accessibility. That said, the DOJ acknowledged that “a report that contains a few errors does not necessarily mean that there are barriers to accessibility.” The DOJ has also approved accessibility policies that “provide the public with a way to report accessibility issues.”
In sum, the long-awaited DOJ guidelines reaffirm the DOJ’s commitment “to use its enforcement authority to ensure website accessibility for people with disabilities.” However, it does little to address key legal issues that make businesses vulnerable to accessibility lawsuits.