The Americans with Disabilities Act in Cyberspace: Website Accessibility Standards

The Americans with Disabilities Act in Cyberspace: Website Accessibility Standards

Legal Sidebari

The Americans with Disabilities Act in
Cyberspace: Website Accessibility Standards
October 20, 2022
Written in 1990, the Americans with Disabilities Act (ADA) gives uncertain guidance about businesses’
and nonprofits’ responsibility to make their online offerings accessible to the disabled. As explained in a
separate Sidebar, courts are divided on whether the parts of the ADA that govern businesses and
nonprofits cover websites, and which websites they cover. (There is little debate that government websites
are required to be accessible, either under the ADA or the Rehabilitation Act.) That said, assuming the
ADA does apply to private websites, the question becomes, How does a covered entity make its website
accessible in a way that comports with the statute? The Department of Justice (DOJ), charged with
enforcing the relevant provisions of the ADA, recently attempted to clarify the agency’s view, issuing
guidance on cyberspace accessibility. This Sidebar describes potential features that make a private
website accessible in those cases where the ADA may apply. It considers judicial decisions on
accessibility, agency guidance for private websites, analogous requirements for federal and federally
funded websites, and private accessibility standards—some of which have gained widespread acceptance
and agency endorsement.
The ADA: Text and History
In general, the ADA requires “modifications to existing facilities and practices” to allow people with
disabilities to participate in public life. The statute covers three major areas of public life: employment
(Title I), public services (state and local government) (Title II), and public accommodations (businesses
and nonprofits open to the public) (Title III).
For public accommodations, the statute requires “reasonable modifications in policies, practices, or
procedures” when needed. Such enterprises must not deny people with disabilities “the opportunity . . . to
participate in or benefit from th[eir] goods, services, facilities, privileges, advantages, or
accommodations.” In other words, to comport with the ADA, public accommodations must be accessible
to persons with covered disabilities. They may not provide an accommodation “that is not equal to that
afforded to other individuals” or that is “different from or separate from that provided to other
individuals” unless a separate benefit is “necessary” to provide an equal opportunity. Reasonable
modification includes offering “auxiliary aids and services” for communication.
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A business or nonprofit need not make modifications that are too difficult, that is, modifications that
“would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or
accommodations” or would cause an “undue burden.” Nor must establishments modify pre-ADA
architecture, except for those changes, such as rearranging shelving, that are “readily achievable.” When
renovating buildings, public accommodations must make them accessible “to the maximum extent
feasible.” Under the ADA, anyone subject to discrimination may sue for injunctive relief—that is,
changes to stop the discrimination and make accommodations accessible. The Attorney General may also
sue for damages and civil penalties.
The ADA has specific instructions for how to make architectural barriers, vehicles, licensing
examinations, elevators, and a few other areas of concern accessible but, unsurprisingly for the 1990 law,
provides no such instructions for websites. As noted earlier, there is some doubt about whether and when
ADA’s Title III even reaches websites. This Sidebar next addresses agency action and guidance, court
precedent, and other sources that (provided Title III’s applicability is resolved) bear on a public
accommodation’s substantive obligations to maintain an accessible website.
Standards for Web Accessibility
Currently, there are no binding rules of general applicability on what qualifies as an accessible website
under the ADA. Basic accessibility features might include text contrast, captions for images, and
compatibility with accessible software such as screen readers and hardware such as braille pads.
However, many basic web-builder tools do not create accessible sites. As websites have become more
graphically sophisticated, they have generally become less accessible. Tables, input boxes for forms, and
visual CAPTCHAs (Completely Automated Public Turing Test to Tell Computers and Humans Apart),
some observers maintain, are routinely inaccessible.
A handful of web accessibility standards have emerged, both public and private, and they have moved
toward consensus over the years. The federal government has also developed rules and standards for the
airline industry (under the Air Carrier Access Act and its regulations), as well as for federal government
websites under Section 508 of the Rehabilitation Act, 29 U.S.C. § 794d. DOJ has long provided technical
assistance to federal agencies on website accessibility.
In its recent guidance regarding public accommodations, DOJ endorses both the federal government
website standards and the long-standing, private Web Content Accessibility Guidelines (WCAG),
although the guidance does not mandate either standard for nonfederal providers.
The Web Content Accessibility Guidelines
The World Wide Web Consortium (W3C), an international community of stakeholders committed to the
long-term development of the internet, has set forth various technical standards and guidelines addressing
privacy, uniform coding, internationalization of technology, and other areas across the internet. For
accessibility, starting in 1999, the W3C created Web Content Accessibility Guidelines (WCAG). The
guidelines grade accessible products with level A, Level AA, or Level AAA compliance.

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In general, WCAG requires websites to be “perceivable, operable, understandable, and robust.” Specific
guidelines elaborate on these principles. To be “perceivable,” website elements must work with multiple
senses. For example, images should have audible captions and audio files should have closed captions.
“Operable” interface components are ones that people with disabilities can activate—with a keyboard
rather than a mouse, for example. Information is “understandable” if it is organized in a coherent way,
even when audible, and includes necessary labels and instructions. A “robust” accessible website works
reliably with various assistive technologies.
As discussed below, parties, courts, DOJ, and other agencies have long incorporated WCAG standards
into settlements and orders with private and local government website providers. Many industry insiders
advise clients to adopt WCAG standards and consider them a safe harbor for accessibility. Both domestic
and international developers have adopted the guidelines. So have many national and local governments
and universities.
Section 508
Section 508 of the Rehabilitation Act requires that federal websites be accessible, giving users with
disabilities access to and use of information and data “comparable to the access to and use of the
information and data” by those without disabilities. The U.S. General Services Administration provides
technical assistance and oversight. The statute calls on the U.S. Access Board, an independent federal
agency, to set up disability access standards in consultation with core federal agencies. The Board
released its first information technology accessibility standards in 2000 and has released revisions.
In its most recent standards, the U.S. Access Board sought to harmonize its requirements with WCAG and
European criteria. Current regulations endorse the WCAG standards, with some specific exceptions. The
changes may diffuse criticism that prior Section 508 rules were outdated and, when compared to WCAG,
held the federal government to a lower standard.
Agency Interpretation and Guidance
On March 18, 2022, the Department of Justice (DOJ), the agency mainly charged with enforcing the
ADA, issued nonbinding web accessibility guidance for public accommodations (covered under ADA’s
Title III) and local governments (under ADA’s Title II). The guidance addresses, among other things, how
public accommodations can make accessible the goods and services they offer online, although it does not
provide detailed standards. The guidance offers a one-page summary of how to make a website
accessible, emphasizing website providers’ “flexibility in how they comply.” WCAG and the federal
government’s Section 508 rules for its own websites are cited as “helpful guidance.”
The limited 2022 guidance contrasts with DOJ’s efforts in years past. In 2010, DOJ published an Advance
Notice of Proposed Rulemaking providing detailed standards for website accessibility. Then, in 2017, it
withdrew its regulatory proposals for websites, stating that it was “evaluating whether promulgating
regulations about the accessibility of Web information and services is necessary and appropriate.”
Aside from referring to WCAG and Section 508 guidelines, the 2022 DOJ guidance lists specific
accessibility features web providers must consider. These include color contrast in text; text alternatives
(descriptions of visual features that a screen reader can announce); captions for visual access to audio
content; labels and other formatting for online forms; keyboard navigation; and a way to report
accessibility issues. The DOJ guidance emphasizes that its summary “is not a complete list of things to
consider.” And especially when it comes to private websites, neither the guidance’s considerations nor the
standards mentioned above are binding.
Although DOJ has not mandated WCAG, it has repeatedly incorporated WCAG standards into settlement
agreements. It has also long recommended them as a resource for local government websites, covered by

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ADA’s Title II. So for local governments, DOJ’s recent guidance merely reaffirms DOJ’s position. Other
agency regulations have adopted WCAG in some cases. For example, the Department of Health and
Human Services applies WCAG to health information technology, and the Department of Transportation
uses them to enforce the Air Carrier Access Act. The Department of Labor’s Workforce Innovations and
Opportunity Act regulations require grantees’ information technology be accessible “consistent with
modern accessibility standards, such as Section 508 Standards (36 CFR part 1194) and W3C’s Web
Content Accessibility Guidelines (WCAG) 2.0 AA.”
Litigation and Judicial Interpretations
As explained in a previous Sidebar, courts have split on whether the ADA’s Title III, regulating private
businesses and nonprofits, applies to nonphysical spaces like websites. But even when courts have
applied the law, there is no uniform way to decide what makes a website ADA compliant given the partial
and generally nonbinding standards described above.
This state of affairs has, according to some observers, provoked excessive lawsuits. Advocates for
businesses report a “cottage industry of demands and litigation directed toward the owners of websites
and mobile applications,” even by users who are not genuine customers. Plaintiffs filed at least 2,258
accessibility suits against websites in 2018, by one observer’s count. Another reported 2,055 suits in 2021
and stated that 10 law firms filed three-quarters of these lawsuits.
Most of these suits settle and, as a practical matter, courts may dismiss for lack of standing suits by web
users who are not genuine customers. But when these cases do go forward, some courts struggle to decide
what constitutes an ADA violation. This led one district court to “call[] on Congress, the Attorney
General, and the Department of Justice to take action and to set minimum web accessibility standards for
the benefit of the disabled community, those subject to Title III, and the judiciary.”
In contrast, other courts have recognized certain advantages in generalized rules: “the ADA and its
implementing regulations are intended to give public accommodations maximum flexibility in meeting
the statute’s requirements,” as one court put it. So “while no specific auxiliary aid or service is required in
any given situation, whatever auxiliary aid or service the public accommodation chooses to provide must
be effective.” The Ninth Circuit, in remanding a case about Domino’s Pizza restaurants’ online ordering,
cited the ADA’s text in concluding that “courts are perfectly capable” of deciding whether websites
provide “auxiliary aids and services” enabling “full and equal enjoyment” of the restaurant’s services. As
a result, “the application of the ADA to the facts of this case are well within the court’s competence.”
While courts do not generally rely on WCAG to assess liability, they do frequently turn to it as a potential
remedy. A federal district court in Florida found “highly persuasive the number of cases adopting WCAG
2.0 Success Level AA as the appropriate standard to measure accessibility.” While the Ninth Circuit did
not reach the issue in the Domino’s case, it stated that “an order requiring compliance with WCAG 2.0
was a possible equitable remedy.” Another court noted arguments that WCAG could be “a sufficient
condition, but not a necessary condition, for . . . compliance, and therefore . . . a potential remedy.”
Many parties adopt these standards in settling cases. A New York federal district court explained, in
approving such a settlement, that WCAG is “an appropriate standard to judge . . . compliance with any
accessibility requirements of the ADA.” In the court’s view, WCAG is “nearly universally accepted.”
That same court noted that it would modify the settlement if DOJ promulgated a final ADA Title III
regulation on website accessibility.

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Legislative Action and Considerations for Congress
Given the lack of generally applicable standards for website accessibility, Congress may consider whether
to clarify matters through legislation. In the 117th Congress, various bills have proposed new accessibility
measures. For instance, the Websites and Software Applications Accessibility Act, S. 4998, introduced in
September 2022, calls for DOJ and the Equal Employment Opportunity Commission to issue accessibility
regulations. It would cover employers, local governments, and public accommodations, as well as website
and application providers who supply websites these entities use. The bill uses some of WCAG’s
language to describe accessibility requirements, without explicitly incorporating WCAG. The Online
Accessibility Act, H.R. 1100, introduced in 2021, would prohibit discrimination in “consumer facing”
websites and applications. The bill relies on WCAG for its substantive standards, although a provider
could also choose “an alternative means of access.” Other bills include H.R. 4686 (116th Congress), which
would have required certain transportation related websites to meet WCAG standards.
The bills described above, were they to become law, would not be the first statutes to incorporate WCAG.
In amendments due to take effect in 2024, 20 U.S.C. § 1090 requires that the Department of Education
make its Free Application for Federal Student Aid, a form often used online, “available in formats
accessible to individuals with disabilities and compliant with the most recent Web Content Accessibility
Guidelines, or successor guidelines.”
In considering whether to impose new requirements on cyberspace infrastructure, Congress may evaluate
how often rules require rebuilding existing websites or applications. If imposing retroactive requirements,
legislators may consider an appropriate implementation period. And Congress may consider exempting
certain web content, such as user-generated content, from accessibility requirements, as Congress has
done in other internet rules. Congress may also consider technical challenges. Industry insiders worry that
there are too many websites for coders to fix manually—some form of automation is needed. In addition,
some third-party accessibility providers have been accused of making websites less secure.

Author Information

April J. Anderson

Legislative Attorney

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