In 1990 when the Americans with Disabilities Act (ADA) was enacted, web accessibility was an unknown concept. The world was based on brick and mortar operations and the ADA’s requirements for these locations — to provide reasonable accessibility to people with disabilities— typically involved the need for a business to provide handrails or a wheelchair ramp.
Fast forward 30 years to our digital world today and online transactions are now a critical component of commerce. As a result, the issue of digital accessibility is a hot topic and ADA related litigation has followed suit. Statistics reveal that the number of lawsuits filed in federal court which allege inaccessible websites has increased over the past several years. Demand letters sent to companies describing web access violations and seeking recompense have increased even more dramatically, with an estimated 265,000 mailed last year (2020 Website Accessibility Lawsuit Recap).
Without clear statutory law or governmental rules and procedures emanating from Congress or the Department of Justice, the Web Content Accessibility Guidelines (WCAG) have assumed the role of providing a common standard for web content accessibility.
What is WCAG?
WCAG is an internationally recognized set of guidelines for digital accessibility. WCAG was created and is managed and published by the Worldwide Web Consortium (W3C), the international web standards group. WCAG has been recognized but not formally adopted by the U.S. Department of Justice (DOJ). Certain courts have also followed the WCAG 2.1 AA guidelines which were recommended by WCAG in June 2018.
WCAG 2.2, the second update since 2018, was originally expected to be published in November 2020. That release has now been moved to the summer of 2021. A draft of the WCAG 2.2 is available online and will likely become the standard of choice for those attempting to modify websites to get ahead of claims.
There are no clear mandatory guidelines in statutory law or regulation to follow WCAG
The ADA currently does not mandate any particular technical standard for website accessibility, nor have relevant regulations been enacted. Though the DOJ has also not formally endorse the WCAG as a legal standard, they have stated that the ADA is applicable to websites of public accommodations.
Despite this lack of statutory and regulatory guidance, WCAG has become the de facto international standard for web accessibility and its compliance has been required by a number of courts when evaluating accessibility. In 2020, 90% of all federal claims reference WCAG 2.0 or 2.1. The February lawsuit recap indicates that last month over 95% of plaintiff complaints cite a lack of WCAG compliance. There is however a high level of ambiguity as a result of conflicting rulings from various U.S. courts about the precise manner in which the ADA and WCAG apply in these situations.
For example, one trial court ruling in the Southern District of Florida, Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1350 (S.D. Fla. 2017), which applied the WCAG standard is getting renewed attention pending its current appeal in the 11th Circuit. In the very recent Lucius v. Hillstone Restaurant Group, Inc. 2021 WL 199701, at *1 (S.D. Fla. Jan. 19, 2021), the Court granted a stay of a relatively standard website accessibility case pending the 11th Circuit’s ruling in Gil v Winn-Dixie Stores, Inc.. Several important questions are being and have been considered by the 11th Circuit including the restrictive position taken by some courts in the past several years that application of the ADA to websites requires a connection to an actual brick and mortar location.
Other important cases have worked their way through the court system as well. On October 7, 2019, the United States Supreme Court denied certiorari, refusing to review the appeal of the U.S. Court of Appeals Ninth Circuit decision, in Robles v. Domino's Pizza, LLC, 913 F.3d 898, 910-11 (9th Cir. 2019). In its refusal, the Supreme Court left intact the Ninth Circuit's decision holding that websites are required to comply with the ADA.
The lack of definitive statutory law or regulation and ambiguous guidance from our courts have left businesses in a quandary and at risk when confronted with a demand letter alleging that a website is inaccessible. Often the best course is to get ahead of problems and make certain that current WCAG guidelines have been adopted. This may be a simple cost of doing business for big firms but can be a larger burden for small businesses.
Barriers to web accessibility will continue to be a growing source of legal battles with the inevitable increase of society’s reliance upon web-based services, particularly with the continuing impact from the pandemic. Until Congress acts or the DOJ issues more definitive guidance, public accommodations need to assess their own web and app services to determine whether and to what extent compliance with WCAG standards are required.