One click closer to website accessibility guidance: DOJ proposes new rule for state and local governments

On July 25, 2023, the 33rd anniversary of the Americans with Disabilities Act (ADA), the US Department of Justice (DOJ) announced a proposed rule to improve digital access to services that state and local governments offer on websites or mobile applications.

This marks the first time in the history of the ADA that the DOJ has issued a proposed rule on website accessibility.  The DOJ acknowledged that online services have too often excluded individuals with disabilities and that clear standards will assist state and local governments ensure that their programs, services, and activities are accessible.

The proposed rule is expected to provide technical guidance that includes specific website accessibility standards, such as captioning videos, adding text descriptions to images for individuals who use screen readers, and enabling navigation through a keyboard instead of a mouse for individuals with mobility impairments.

Until now, the lack of regulatory standards has resulted in widespread confusion about what ADA “compliance” is, inconsistent case law as federal courts fill in the regulatory gap, and a wave of predatory litigation in which tens of thousands of businesses have been sued.

The DOJ, charged with enforcing relevant provisions of the ADA, recently attempted to clarify the Department’s view on website accessibility.  In March 2022, the DOJ published guidance on website accessibility, in which it reiterated its position that ADA’s requirements apply to web content, but declined to adopt any specific standards by which websites are considered compliant.  Indeed, the DOJ acknowledged that it “does not have a regulation setting out detailed standards,” adding that “the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.”

The DOJ further added that “[b]usinesses and state and local governments have flexibility in how they comply with the ADA’s general requirements” and “can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.”  (Emphasis added).  In its March 2022 guidance, however, the DOJ did not define the available choices or clarify how businesses can ensure accessibility, beyond citing third-party resources, which do not have the force of law.

In the absence of defined standards, the Web Content Accessibility Guidelines (WCAG 2.0 & 2.1) have become the “gold standard” for website accessibility.  Many federal courts have accepted the WCAG as the voluntary standard for ensuring website accessibility, and many website accessibility lawsuits are settled on the condition of WCAG “compliance.” Although WCAG has been touted as the applicable standard, WCAG is not legally binding because these guidelines are created and maintained by a private, international industry group.

The DOJ’s proposed rule is a groundbreaking development that seeks to ensure that individuals with disabilities can fully and equitably access online content. In addition to adopting a technical legal standard, the new regulations could resolve other open questions on website accessibility, including the role of third-party content providers, undue hardship analyses, and safe harbor periods for websites that have been remediated.

For now, the proposed rule only applies to bodies covered by Title II of the ADA: state and local government entities.  However, a comparable (or identical) rule may be forthcoming for private businesses or “places of public accommodation” that are governed by Title III. Private businesses are encouraged to pay close attention to the proposed rule as it may foreshadow regulations to come. 

The proposed rule has been sent to the Federal Register for publication and will soon be available for review on the Federal Register’s website at www.federalregister.gov. After publication, the comment period will be open for 60 days.

We will continue to monitor these developments. In the meantime, if you have any questions regarding these or other ADA issues, please contact the authors or your DLA Piper relationship attorney.