DOJ Announces Intent for Future Website Accessibility Regulations

WCAG 2.0 and 2.1: Bringing Web Accessibility Into the 21st Century [Free Ebook] 

In July 2022, the U.S. Department of Justice (DOJ) announced its intent to establish new regulations providing technical standards for website accessibility under Title II of the Americans with Disabilities Act (ADA).

The announcement came almost half a year after the DOJ issued guidance on website accessibility and the ADA, which disappointed many disability advocates due to legal uncertainty around requirements and a lack of new recommendations compared to those the DOJ made in 2003.

The abstract states that “many websites from public entities (i.e., State and local governments) fail to incorporate or activate features that enable users with disabilities to access the public entity’s programs, activities, services, or information online.  The Department intends to publish a Notice of Proposed Rulemaking (NPRM) to amend its Title II ADA regulation to provide technical standards to assist public entities in complying with their existing obligations to make their websites accessible to individuals with disabilities.”

The DOJ intends to publish its Notice of Proposed Rulemaking by April 2023 to amend its Title II regulation and to receive public comment by no later than June 2023.

What is Title II of the ADA?

Title II of the ADA prohibits disability discrimination by all public entities at the local and state levels. For example, schools, courts, police departments, public libraries, and public universities must comply with Title II. Compliance is required regardless of whether an organization receives federal funding.

Title II also applies to employment in public entities, meaning disabled employees must not be barred from performing responsibilities because of inaccessible processes or procedures.

Title II mandates that state and local governments:

• May not refuse to allow a person with a disability to participate in a service, program, or activity simply because the person has a disability.
• Must provide programs and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity.
• Must furnish auxiliary aids and services when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.
• Must operate programs so that, when viewed in their entirety, they are readily accessible to and usable by individuals with disabilities.

Why the DOJ’s announcement matters for the future of web accessibility

Regulations providing technical guidance for website accessibility would benefit all parties involved, including Title II entities and the disability community. Since the ADA predates the Internet, its text does not mention digital accessibility. While case law has shown the ADA to apply to online businesses in multiple instances, the lack of regulatory standards means that organizations do not have clear expectations or guidance for making their websites accessible.

Without clear standards, websites continue to be inaccessible and litigation remains increasingly rampant. In the first half of 2022 alone, nearly 100 new ADA-based lawsuits for digital accessibility were filed per week compared to 70 per week in 2021, according to UsableNet’s 2022 Mid-Year Report on ADA Digital Accessibility Lawsuits. By the end of 2022, UsableNet predicts that the total number will surpass 4,500 cases, a 10% increase from last year.  

The DOJ’s new rule would provide technical standards, most likely targeting WCAG 2.1 Levels A and AA, and clarify what state and local governments need to do to make sure that their online programs, services, and activities are accessible to people with disabilities, according to Ken Nakata from Converge Accessibility. 

However, as Nakata notes, the DOJ will need to work quickly on its proposed rulemaking. Under the Obama administration in 2010, the DOJ published a Notice of Proposed Rulemaking regarding website accessibility for Title II (state and local governments) and Title III (public accommodations) entities, but the DOJ under the Trump administration withdrew these rulemakings at the end of 2017. Delays on the proposed rulemaking could cause the process to extend into the next presidential election, and it’s unclear whether the next administration will view web accessibility regulations as favorably as the current administration.

This blog post is written for educational and general information purposes only and does not constitute specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.