The Department of Justice (“DOJ”) recently released its long-awaited “Guidance on Web Accessibility and the ADA” for state and local governments, as well as businesses open to the public. But what does this Guidance provide? Will it change the face of website accessibility litigation as we currently know it? And, if so, how?

The Guidance provides the following:

  1. The ADA’s requirements apply to all the services, programs, or activities of state and local governments, including those offered on the web.
  2. The ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.
  3. Businesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication, but compliance is mandatory.

Even with the aforementioned information, businesses are still left guessing as to appropriate action to shield themselves from lawsuits. Unanswered questions remain regarding which version of the Website Content Accessibility Guidelines (“WCAG”) will apply; how compliance will be determined; technical compliance standards; ongoing compliance; timing for compliance; if exceptions exist; if an entity is liable for third-party content on their website, and whether the lack of nexus to a physical location from an online merchant avoids the applicability of the Guidance.

  • Which version of the Website Content Accessibility Guidelines will apply?
    • WCAG (developed by the World Wide Web Consortium (W3C)) is a set of recommendations for making internet content more accessible. WCAG itself is a continuously evolving set of guidelines: WCAG 2.0 was published in 2008, followed by WCAG 2.1 in 2018, and now, in the coming months, WCAG 2.2. is anticipated to be finalized. Although the guidance does not expressly endorse a particular version of WCAG, the DOJ’s recent settlements regarding the accessibility of COVID-19 vaccine registration websites reference WCAG 2.1 Level AA. Compliance with the guidelines is determined by conformance with the success criteria. Additionally, compliance is also required regarding third-party content on websites.
  • How will compliance be determined?
    • The criteria contained within WCAG are referred to as “testable success criteria” composed of three levels: A, AA, and AAA, which determine conformance to WCAG. Not only have the Web content Accessibility Guidelines been integrated into internet protocol – current trends indicate that Section 508 standards, which have adopted WCAG 2.0 Level AA Success Criteria, are likely to follow.
  • What does the Guidance say about ongoing compliance obligations?
    • The Guidance does not comment on ongoing compliance obligations, regular testing or periodic audits. It does not address either the threshold for undue burden or the reasonableness of an ongoing testing and maintenance program.
  • Will the lack of nexus to a physical location insulate e-commerce providers from liability?
    • The recent DOJ Guidance does not confirm or disaffirm a “nexus” requirement between a website and a physical location but does suggest that the DOJ leans towards the view that even websites without a nexus to a physical place of public accommodation could be subject to the ADA. As the commerce continues to skew toward the digital sphere, this could subject a vast number of e-commerce entities to web accessibility regulations without connection to a traditional brick-and-mortar location.

In sum, though the Guidelines have brought some clarity in the present as well as foreshadowing the trajectory of these regulations, they do not change the current face of litigation over website accessibility. These issues are complex and require experienced attorneys. Such professionals should be retained to ensure successful navigation of these criteria and ongoing compliance to insulate companies from future litigation.

CMBG3 Law LLC has represented numerous clients sued in these matters as well as counseled clients regarding compliance and best practices. For more information about ADA website lawsuits, ADA accessibility and WCAG, as well as to successfully navigate the complexities of compliance with the Web Content Accessibility Guidelines, please contact Caren Dombrowski (949-467-9588) or visit our ADA Compliance practice page.

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