New DOJ Position on Website Accessibility

A recent shift in position from the Department of Justice could have legal ramifications for how people with disabilities access your website.

On June 25, 2015, the Department of Justice (DOJ) issued statements (which you can read here and here) shifting its position on enforcing how public websites should comply with the Americans with Disabilities Act (ADA). For the past five years, it was widely interpreted that websites for public accommodations—entities both public and private that are used by the public—did not necessarily need to meet online accessibility requirements as long as they offered an equivalent alternative to access the same goods and services provided on their website. With this shift in position by the DOJ, that could change.

A Public Accommodation?

Who is affected by this? Under U.S. federal law, public accommodations are “generally defined as entities, both public and private, that are used by the public.” These entities must be accessible to people with disabilities and must not discriminate on the basis of race, color, religion, or national origin. Some examples of public accommodations include educational institutions, retail stores, recreational facilities, service centers, chambers of commerce, and so on. Private clubs and religious institutions are exempt.

It is important to note that this designation applies to the website of a public accommodation as well. Any website representing an institution to which the public has access will likely be affected by this shift in the DOJ’s position. That’s a lot of websites.

The Rules

Section 508 of the Rehabilitation Act of 1973 requires federal agencies to provide software and website accessibility to people with disabilities. The original law stated that all federal agencies and institutions that receive federal funding are required to be 508 compliant, including government agencies, federal-funded nonprofits, public higher education institutions and public K-12 schools. That has since been expanded to include public accommodations.

In 2010, the DOJ released what is known as an Advanced Notice of Proposed Rulemaking (ANPRM), stating that it would issue new regulations under the ADA to address accessibility of public accommodations websites. The 2010 ANPRM noted that as long as an equally viable alternative exists for people with disabilities to access the same information, options and services provided by a website, the website itself did not need to be 508 compliant.

In response to lawsuits filed by the National Association of the Deaf (NAD), the DOJ recently shifted its stance, noting that the obligation to make websites accessible exists right now, even without any new official regulations, which aren’t expected until Spring 2016.

Though the NAD lawsuits were specific to closed captioning of online videos, the same principles can be applied to all web content. Per The National Law Review:

… recent settlement agreements with DOJ have seen an increased focus on website accessibility (as well as the addition of mobile applications) and at the state level regulators are increasingly pursuing self-initiated compliance actions focused on allegations of inaccessible technology (including websites).

Making Websites Accessible

According to the World Health Organization’s World Report on Disability, published in 2011, more than one billion people in the world have some sort of disability, about 15% of the population. ADA guidelines note that “Accessible website design… does not require people to see, hear, or use a standard mouse in order to access the information and services provided.” Accessibility-compliant websites allow people who use screen readers, speech recognition software, Braille terminals, and other assistive technologies to access web content without barriers.

For example, if a website is coded semantically with HTML that offers text-based alternatives to images and appropriate title and anchor text on links, this will help blind people using assistive technologies access that content. While a complete list of tasks for making your website more accessible is beyond the scope of this post, the W3C’s Web Content Accessibility Guidelines is a very comprehensive resource for doing just that.

Accessible Websites are More Sustainable Websites

The most widely accessible websites are also more sustainable websites. Accessibility and sustainability go hand-in-hand, as following web accessibility guidelines will make your content more usable for all your users, not just those with disabilities. In other words, when all users can find and interact with content efficiently, you save energy and frustration. Everyone wins, including the planet.

What This Means for Website Owners

While the lawsuits in question are against Harvard and MIT, similar suits have been filed against Peapod, Scribd, H&R Block, The National Museum of Crime and Punishment, and others, underscoring how critical it is for companies with public websites to consider the specific needs of people with disabilities alongside all users. Mandatory ADA compliance for all public websites is coming.

This shift has ramifications for anyone who owns and operates a website that is open to the public. According to a blog post on Lexology, “DOJ expects public accommodations to make their websites accessible, even in the absence of even a proposed regulation that would provide public accommodations guidance, through the proper regulatory process, as to what the DOJ considers a legally-compliant ‘accessible website’.”

While official recommendations may still be a year off, it is not too early to start thinking about accessibility for your own website. Not sure whether your current website is accessible? Check out the free 508 Checker from the folks at FormStack or contact us with questions.