The US Department of Justice (“DOJ“) recently published its Guidance on website accessibility under the Americans with Disabilities Act (the “Guidance). The Guidance is designed to explain how state and local governments and businesses open to the public (collectively, “Covered Entities“) can ensure that their websites are accessible to people with disabilities in accordance with the requirements set forth under the Americans with Disabilities Act (“ADA“).

Until now, website accessibility requirements have been unclear, in light of the fact that the ADA, which was signed into law in 1990, does not specifically address the accessibility of modern digital properties, such as websites or mobile applications. According to the Assistant Attorney General for the DOJ’s Civil Rights Division, the Guidance was drafted in response to the public’s call on the need for more guidance on website accessibility, especially since the economy and society become increasingly digitized.

To objective of this Guidance, according to the DOJ, is assisting the public in understating how to ensure that websites are accessible to people with disabilities. The Guidance starts by explaining the importance of ensuring website accessibility, which is equal to ensuring access to information and services.

The Guidance provides several examples of website accessibility barriers, including:

• Poor color contrast: people with limited or color blindness cannot read text if there is not enough contrast between the text and the background;
• Use of color alone to give information: people with color blindness may not be able to know that color is meant to convey certain information, for example, by using red text alone for required fields in an online form;
• Lack of text alternatives on images: text alternatives are required to convey the purpose of an image (including pictures or charts) for blind people;
• Mouse-only navigation: people with disabilities who cannot use a mouse will not be able to access the content or services unless the website supports keyboard navigation.

The DOJ underlines in its Guidance that it takes a broad position on the applicability of the ADA to websites. It clarifies that Title II (applicable to state and local governments) and Title III (applicable to businesses that are open to the public) of the ADA, apply to all services, programs, activities goods or privileges offered by Covered Entities, including those offered on their websites.

The DOJ also emphasizes that Covered Entities can currently choose how to ensure that programs, services, and goods they offer online are accessible to people with disabilities. The Guidance, however, provides resources for further technical direction, and references the Web Content Accessibility Guidelines (WCAG), which are a globally recognized set of voluntary web accessibility guidelines developed by the World Wide Web Consortium’s (W3C) Web Accessibility Initiative, and the Section 508 Standards, which set forth accessibility requirements for federal government websites.

Nonetheless, the DOJ provides in the Guidance certain examples of what Covered Entities should do to make their websites accessible, including:

• Ensuring sufficient color contrast between the text and the background;
• Adding synchronized captions to videos;
• Enabling people with vision disabilities to use the browser’s zoom capabilities to increase the size of the font;
• Using automated accessibility checkers that identify or fix accessibility problems together with a manual check of the website; and
• Providing a way for the public to report accessibility problems so that the website owners can fix them.

Lastly, the DOJ has made it clear that it is committed to using its enforcement authority to ensure digital accessibility. It emphasized its ongoing effort to advance website accessibility for people with disabilities through statements of interest and enforcement actions, such as the DOJ’s recent settlements regarding the accessibility of COVID-19 vaccine registration websites.

We encourage our clients and friends to review their website accessibility practices to ensure compliance with the evolving standards.

Kind regards,

Ariel Yosefi, Partner
Head of Technology & eCommerce Regulation