Guidance on Web Accessibility and the ADA

Plain English Summary

The Department of Justice has consistently taken the position that the Americans with Disabilities Act applies to websites. Through a series of guidance documents, settlement agreements, enforcement actions, and statements of interest filed in court cases, the DOJ has made clear that both government entities (Title II) and private businesses (Title III) have an obligation to make their websites accessible to people with disabilities.

The most prominent formal guidance was published on March 18, 2022, when the DOJ released a document titled "Guidance on Web Accessibility and the ADA." This document explicitly states that the ADA applies to web content, reaffirms the DOJ's long-standing position, and provides practical guidance on what organizations should do to ensure accessibility.

This guidance matters because, while the 2024 Title II rule now establishes specific technical standards for government websites, there is still no formal regulation specifying web accessibility standards for private businesses under Title III. The DOJ's guidance fills that gap by articulating what the DOJ expects and what it will enforce, and courts regularly reference this guidance when deciding ADA web accessibility cases.

Who This Applies To

The DOJ's guidance is directed at two primary audiences:

State and Local Governments (Title II):

• All state and local government entities that offer services, programs, or activities through websites or mobile apps
• Government entities are reminded that Title II requires them to communicate effectively with people with disabilities, and this extends to digital channels

Private Businesses (Title III):

• Businesses that are "places of public accommodation" as defined by Title III
• The guidance states that the obligation to provide accessible goods and services includes making websites and other digital content accessible
• This covers virtually any business open to the public that has a website

Additional Audiences:

• Courts hearing ADA web accessibility cases (the guidance informs judicial analysis)
• Attorneys advising clients on accessibility obligations
• Web developers and designers building sites for covered entities
• Accessibility consultants and auditors

Key Requirements

Core Position: The ADA Applies to Websites

The DOJ's guidance makes several key points:

1. Websites are covered. The ADA's requirements apply to web content. Inaccessible websites can exclude people with disabilities just as effectively as a building without a ramp.

2. Both Title II and Title III cover web content. Government entities and private businesses alike must ensure their websites are accessible.

3. The obligation is not new. The DOJ emphasizes that this is not a new requirement. The ADA has applied to websites for years, and the DOJ has enforced this position through numerous settlement agreements and enforcement actions.

Practical Guidance

The DOJ identifies common accessibility barriers and practical steps:

Common Barriers Identified:

• Missing alt text for images
• Inaccessible online forms
• Lack of keyboard navigation support
• Videos without captions
• Poor color contrast
• Mouse-only interactions
• Inaccessible PDFs and documents

Recommended Actions:

• Follow WCAG guidelines (the DOJ does not mandate a specific version for Title III but points to WCAG as the appropriate benchmark)
• Use automated and manual testing methods
• Include people with disabilities in user testing
• Develop and publish an accessibility statement
• Create a feedback mechanism for users to report barriers
• Train staff on accessibility best practices

Settlement Agreement Patterns

The DOJ's enforcement actions and settlement agreements provide additional practical guidance. Common requirements in settlements include:

• Conformance with WCAG 2.1 Level AA within a specified timeframe
• Retention of an accessibility consultant or coordinator
• Regular third-party accessibility audits
• Development of an accessibility policy
• Staff training on accessibility
• Ongoing monitoring and reporting
• Establishment of a feedback mechanism for users

Statements of Interest

The DOJ has filed statements of interest in numerous private ADA web accessibility cases, consistently arguing:

• That the ADA applies to websites of places of public accommodation
• That the lack of a formal regulation does not excuse noncompliance
• That WCAG is an appropriate benchmark for assessing accessibility
• That businesses cannot wait for rulemaking to address accessibility

Enforcement and Penalties

DOJ Enforcement History

The DOJ has a long track record of web accessibility enforcement:

Notable Enforcement Actions:

• Settlement with a major university (2015) requiring WCAG 2.0 AA compliance for all web content and online learning platforms
• Settlement with multiple state and local government entities requiring website accessibility remediation
• Enforcement actions against healthcare providers with inaccessible patient portals
• Actions against county election websites for inaccessible voting information

Settlement Agreement Penalties

Typical DOJ settlement agreements include:

• Mandatory remediation to WCAG 2.1 AA
• Compliance timelines (typically 12-24 months)
• Third-party auditing requirements
• Monetary penalties where applicable
• Ongoing monitoring (typically 3-5 years)
• Regular reporting to the DOJ

Private Litigation

The DOJ's guidance strengthens plaintiffs' positions in private Title III lawsuits:

• Courts cite DOJ guidance when determining whether websites are covered by the ADA
• The guidance provides a framework for evaluating what constitutes accessibility
• Settlement agreements in private cases often mirror DOJ enforcement patterns

Penalties by Legal Framework

• Title II: Compensatory damages (no cap), injunctive relief, attorneys' fees, potential loss of federal funding
• Title III: Injunctive relief, civil penalties up to $75,000 (first violation) or $150,000 (subsequent), attorneys' fees in DOJ actions; injunctive relief and attorneys' fees in private lawsuits

Practical Implications

For Private Businesses

• Do not assume you are exempt because there is no Title III web regulation. The DOJ has been clear that the ADA applies to websites, and courts have agreed. The absence of a specific regulation does not equal the absence of an obligation.
• Use WCAG 2.1 Level AA as your target. While the DOJ has not formally mandated a specific version for Title III, settlement agreements and enforcement actions consistently reference WCAG 2.1 AA.
• Proactive compliance is vastly less expensive than litigation. The average cost of defending an ADA web accessibility lawsuit far exceeds the cost of building an accessible website.
• Publish an accessibility statement. Include your commitment to accessibility, the standards you follow, and how users can report barriers or request accommodations.
• Document your efforts. Courts consider good faith efforts at compliance. Keep records of audits, remediation efforts, training, and accessibility improvements.

For Government Entities

• The 2024 Title II rule now provides specific requirements, but this broader guidance establishes the context. Web accessibility has been required under Title II since the ADA was enacted.
• Address not just your website but all digital touchpoints. Online forms, payment systems, meeting platforms, social media, and digital documents are all part of your obligation.

For Legal Professionals

• This guidance is persuasive authority. While not binding like a regulation, DOJ guidance receives significant deference from courts.
• Reference DOJ settlement agreements when advising clients on compliance standards, as they provide concrete examples of what the DOJ considers acceptable.
• Monitor for future rulemaking. The DOJ has indicated interest in formal Title III web accessibility rulemaking, which would carry the force of law.

For Web Developers

• Build accessibility into every project. The DOJ's position makes it clear that web accessibility is not optional for any business open to the public.
• Stay current with WCAG. The DOJ references the most current applicable WCAG version in its enforcement actions.
• Test comprehensively. The common barriers identified by the DOJ (alt text, keyboard navigation, forms, captions, contrast) should be part of every quality assurance process.

Key Dates and Deadlines

| Date | Event | |------|-------| | July 26, 1990 | ADA signed into law | | 2010-present | DOJ enters numerous web accessibility settlement agreements | | June 28, 2018 | DOJ withdraws Advance Notice of Proposed Rulemaking on Title III web accessibility | | March 18, 2022 | DOJ publishes formal "Guidance on Web Accessibility and the ADA" | | April 24, 2024 | DOJ publishes Title II web accessibility final rule (WCAG 2.1 AA) | | TBD | Potential future Title III web accessibility rulemaking |

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This content is provided for educational and informational purposes only and does not constitute legal advice. For guidance on your specific situation, consult a qualified attorney. Laws and regulations are subject to change, and this information may not reflect the most current legal developments.