United States DOJ Releases New Rule Mandating Digital Accessibility for State and Local Governments

Raleigh, N.C. (April 15, 2024) – The Americans with Disabilities Act prohibits covered entities from discriminating on the basis of disability. Over the past ten years thousands of lawsuits – many styled as class actions – have been filed against covered entities alleging that they have failed to make their websites and mobile applications accessible. The proliferation of litigation has been exacerbated by the failure of the Department of Justice, which is tasked with enacting regulations under the ADA’s public accommodation provisions, to issue long-anticipated regulations on how to measure digital accessibility. The lack of regulations has led to ambiguity about which standards applied, leaving covered entities largely in the dark regarding the best way to protect themselves from litigation and to accommodate persons with disabilities.

That all changed on Wednesday, April 10, at least as to state and local governments and entities that receive federal funding.

The DOJ announced its final rule regarding state and local governments’ obligations for providing accessible websites and mobile applications. Pursuant to the regulations that are being adopted, accessibility can be demonstrated by complying with the Web Content Accessibility Guidelines (WCAG), which is a set of testable success criteria that measure everything from text color contrast to the use of captions on audio productions. The DOJ specifically references WCAG 2.1, which was released in 2018 and is more stringent than WCAG 2.0, the version of the rules against which the federal government measures itself. Covered entities should now be able to rely on compliance with these standards to demonstrate accessibility, which promotes proactive remediation and helps to decrease the risk of litigation.

By way of background, people with disabilities use different assistive technology to navigate, comprehend, and interact with websites, mobile applications, and other digital offerings. However, each person with a disability uses a different suite of assistive technology, so there has previously been no legally-accepted least common denominator. Now that these covered entities have testable criteria, they are able to objectively analyze their offerings for litigation risk, rather than being beholden to a particular disabled individual’s specific circumstances.

This rule applies only to entities covered by ADA Title II; i.e., state and local governments. Governments will be required to comply within either two or three years, depending on the entity’s size. However, it is anticipated that the rule will foster the use of WCAG 2.1 as the standard by which websites generally will be evaluated for accessibility. There are several narrow exceptions to the mandate that content be accessible, including for archived content, third-party posts by entities that do not have contractual relationships with the entity, preexisting social media posts, preexisting electronic documents, and individualized password-protected documents.

The rule also limits the circumstances in which covered entities can use conforming alternative versions. Typically, a provider can offer a conforming alternative version of their content, such as a specific “accessible version” of their website, in the same way that theatres and sports arenas offer handicapped seating. The new regulations will limit a state or local entity’s ability to use an alternative conforming version to only those circumstances where practical or legal restrictions prevent the entity from creating one conforming product. In other words, covered entities probably cannot rely on simply creating a second “accessible” version of their website or application.

We also expect discussion on whether using accessibility overlays or widgets will be limited by the alternative conforming version regulations. Simply put, overlays and widgets are services offered by third-party venders that are designed to make non-accessible content accessible through the use of code and AI.

The DOJ also accounted for the strict compliance requirements associated with WCAG. An entity that fails to comply with WCAG in some minor way – such as having text color contrast that is almost, but not quite, compliant with the WCAG requirements – has the opportunity to argue that, even given the minor deviation from the guidelines, a person with a disability still receives equal access. This safe harbor is vital, as the WCAG success criteria are analyzed on a pass or fail basis, and full suite compliance can, in certain circumstances, be impossible to accomplish.

While this rule does not apply to private businesses covered by Title III of the ADA, its requirements appear to be a good indication of guidance to come regarding places of public accommodation, including websites and mobile apps operated by such businesses. The rule also brings the enforcement of Title II of the ADA into line with several state laws that have incorporated WCAG as demonstrable evidence of accessibility.

The rule is both lengthy and new, and we will continue to provide guidance on its implementation during the rollout. In the meantime, the DOJ’s fact sheet on the new rule provides a helpful summary.

Lewis Brisbois’ ADA Compliance and Defense group can assist with questions about ADA compliance for website and mobile applications as well as defending threatened and filed litigations brought by individuals with disabilities. In addition to decreasing litigation risk, having accessible offerings promotes equity, eliminates barriers for persons with disabilities, and increases your ability to serve new and existing clients as 26% of adults in America live with some sort of disability.

Author:

Derek J. Dittmar, Associate

Editor:

Peter T. Shapiro, Partner and Regional Vice-Chair of Labor & Employment Group