Under the Americans With Disabilities Act (ADA), does not explicitly mention digital and website accessibility. When it was written, the digital landscape was still fairly undeveloped, so digital and website accessibility were less of a concern. However, as technology has become an inescapable necessity in daily life, the need for digital accessibility has skyrocketed, and the ADA has been applied to many different cases of disability discrimination.
Though it may not be spelled out in the legislative language of the ADA, digital accessibility is still a legal requirement, and the Department of Justice (DOJ) has released guidance to clarify where the law stands. Despite ambiguity on the means, businesses must adhere to DOJ guidelines on accessibility.
Web accessibility guidance
On March 18th, 2022, the DOJ issued a press release on web accessibility guidance explaining how to interpret web accessibility under the ADA. The full guidance detailed the importance of web accessibility, the impact of barriers to web content, ADA requirements, web accessibility tips, and further information.
Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division stated, “We have heard the calls from the public on the need for more guidance on web accessibility, particularly as our economy and society become increasingly digitized. This guidance will assist the public in understanding how to ensure that websites are accessible to people with disabilities.” This speaks to the confusion on how the ADA, which does not mention web accessibility, applies in the digital age.
The guidance released also reviewed several recent lawsuits, including lawsuits against major companies such as Rite-Aid and Kroger, which highlight the ongoing issue of inaccessible websites. Overall, this guidance was a step towards clarifying how the ADA applies to web and digital accessibility.
Because there is no legislation defining exactly how one must make digital content accessible, the requirements are particularly open to interpretation. So despite the DOJ reasserting that the ADA applies to websites, judges’ rulings differ and sometimes contradict official guidance, claiming that the ADA does not apply.
The DOJ does recommend deferring to the Web Content Accessibility Guidelines (WCAG) as a rubric for implementing and maintaining digital accessibility. WCAG is an internationally-recognized standard and is what federal entities and contractors are legally required to adhere to under Section 508.
Businesses and state and local government entities still are not bound to a specific set of guidelines defining what is accessible. But adhering to the recommended guidelines is the best way to mitigate potential legal problems.
The Websites and Softwares Applications Accessibility Act
U.S. Senator Tammy Duckworth (D-IL) and U.S. Representative John Sarbanes (D-MD-03) introduced a bill in September 2022 to create a set of firm guidelines to ensure website accessibility. The bill, titled The Websites and Softwares Applications Accessibility Act, aims to build on the ADA and extend the protections it provides for people with disabilities into the digital landscape.
This act would address the problem of inconsistent rulings and hopefully break down barriers that exist currently, in part, due to a lack of clear regulations for digital accessibility. Supported both by Congress and disability advocates across the United States, the Act serves as a chance to modernize disability rights.
Essentially, The Websites and Softwares Applications Accessibility Act would clarify that it is unlawful for a business to host an inaccessible website, establishing fines and penalties for businesses that fail to make their websites accessible. It would establish a clear, enforceable standard and assist businesses to help them achieve accessibility.
The DOJ asserts that the ADA applies to digital accessibility, even though it doesn't legally define the bar for digital accessibility for non-federal entities.
Regardless, any entity subject to the ADA must make its digital content accessible, and the DOJ is working to clarify what that means and how to do so. And until that's set in stone, following the guidelines that the federal government itself adheres to is a great place to start.