The Department of Justice (DOJ) is poised to issue regulations that will reshape websites across the U.S. It is only a matter of time before the DOJ mandates that websites will have to be accessible to the disabled. The meaning of accessibility and the deadline for accomplishing it will be addressed in the new regulations, which are expected within the next six to 12 months.
The Web Content Accessibility Guidelines (WCAG) developed by the Worldwide Web Consortium (W3C) will likely be adopted by the DOJ or will play a substantial role in shaping the new website accessibility regulations. Accessibility issues addressed by the WCAG include, but are not limited to:
- Providing text alternatives for photographs, charts and graphics so they can be changed into large print or Braille for visually impaired users
- Making video accessible via text and sequencing
- Minimizing the use of blinking and flashing
- Providing documents in text-based, not image-based formats, for ease of reading
- Using “skip navigation” links so that core website material can be immediately accessed
- Ensuring that all material conveyed in color also is available without color
The DOJ intends for these or similar standards to apply to all websites that transact business. This is an aggressive view of the current state of the law. There is an open legal question as to whether Title III of the Americans with Disabilities Act (ADA) was intended to apply to websites at all, particularly where there is no nexus between a website and a physical store, such as a retail location.
There also is a question of whether informational aspects of a website need to be made accessible under the ADA. The DOJ is taking an expansive view of the law, and it is expected that all websites that transact business, regardless of whether there is a physical nexus between the website and a store location, will have to comply with the new regulations and be made accessible.
As to the regulations themselves, it is expected that websites that are placed online six months after the regulations are issued will be covered. This includes brand-new websites or completely redesigned websites. Likewise, new pages added to existing website (as opposed to a complete redesign) also will likely need to be accessible under the new regulations to the maximum extent possible.
The DOJ is considering permitting existing websites to comply with the new regulations two years after the effective date. The DOJ also is considering limiting the new regulations to websites of a certain size (such as companies with 15 or more employees or that earn a certain amount of revenue) or in certain categories (such as retail websites).
Retailers now face quite a bit of uncertainty and risk. The DOJ is not waiting on its regulations to enforce its view of the law. The DOJ already has published several consent decrees that require companies to comply with the WCAG. Moreover, private litigation also is on the rise. There is an existing group of highly educated and well-funded plaintiffs’ attorneys who are profiting from this new development under the ADA, and are poised to increase their business under the new DOJ regulations. New settlements are consistently being reported, which, again, generally require compliance with WCAG standards.
In light of this uncertainty, companies should review their own websites to assess risk in relation to the WCAG. They should pay particular attention to the retail portions of the website and, at a minimum, modifications should be considered for features that make online retail transactions inaccessible to blind and deaf patrons—the two biggest disability groups that are filing website accessibility lawsuits today.