Article III of the Americans with Disabilities Act (ADA) prohibits discrimination against disabled persons in the full and equal enjoyment of public accommodation. When a website is considered a place of public accommodation, the website must be accessible to people with disabilities. This requirement is the source of extensive litigation throughout the United States, as plaintiffs regularly bring lawsuits against defendant companies based on the accessibility (or lack thereof) of their websites.

The Website Content Accessibility Guidelines (WCAG) are a series of guidelines that provide businesses and other website owners with standards to abide by in order to ensure that their website is accessible for users with disabilities. Many courts have utilized these guidelines to determine compliance with the ADA while we await concrete guidance from the Department of Justice (DOJ). On June 6, the World Wide Web Consortium (W3C) published its WCAG 2.1 as a “W3C Recommendation” web standard. All requirements from the prior version 2.0 are included in 2.1, however 2.1 adds 17 additional success criteria. WCAG 2.1 includes updates intended to address 3 major groups: users with cognitive or learning disabilities, users with low vision, and users with disabilities on mobile devices. WCAG 2.1 provides additional criteria as technology evolves—for instance, the new standards include guidance on accessibility of mobile apps, such as user interactions using touch, handling more complex gestures, and avoiding unintended activation of an interface. Since WCAG 2.1 sets forth even more criteria with which to comply than 2.0, websites that were designed based off the 2.0 requirements may no longer be fully compliant with these guidelines. Thus, if businesses have already modified their websites to meet WCAG 2.0, the question now becomes whether they will need to further enhance their websites to meet 2.1.

Moreover, the DOJ's failure to provide clarity with respect to the ADA's application to websites has become a significant problem for unsuspecting businesses of nearly every size and industry. For instance, defendants of website accessibility claims have argued that plaintiffs' requests for injunctive relief violate due process, because due process requires a statute to give adequate notice of its scope, and neither the ADA itself nor its regulations address website accessibility requirements. However, this argument has been rejected by courts in various jurisdictions. For instance, in July 2018, the Eastern District of Michigan held that “Title III is not so indefinite in its terms that it fails to articulate comprehensible standards to which a person's conduct must conform,” see Brintley v. Aeroquip Credit Union, 2018 U.S. Dist. LEXIS 121202, *15 (E.D. Mich. July 20, 2018). Similarly, in August 2018, the Eastern District of New York took a strong stance in explaining that courts would not wait for DOJ guidance before resolving ADA website accessibility claims. See generally, Reed v. 1-800-Flowers.com, 2018 U.S. Dist. LEXIS 144427, *17-18 (E.D.N.Y. Aug. 24, 2018). In Reed, the court explained that the “… DOJ has not yet promulgated regulations related to website accessibility under the ADA” and “although the court understands the Defendant's desire to wait until more definitive guidance from the DOJ exists, the court must also consider the Plaintiff's right to a prompt adjudication of her claim.”

Despite the lack of DOJ activity in this area, there is legislation currently in committee that would instruct the DOJ to take action to adopt web accessibility guidelines in fiscal year 2019. The legislation has been approved by the House Appropriations Committee but has not yet been voted into law by the House and Senate. Notably, even if the bill is eventually adopted, the language states that “the committee expects the department to clarify standards …”, but fails to assess any penalty for the DOJ's failure to do so. Thus, it is unclear what effect, if any, the current bill would have on increasing clarity in this landscape.

Most recently, on Sept. 25, the DOJ issued a statement in response to a letter from Congressman Ted Budd regarding website accessibility for public accommodations under the ADA. In the statement, the DOJ explained that it continues to evaluate whether it is necessary to promulgate specific web accessibility standards through regulations to ensure compliance with the ADA. However, the DOJ noted that the absence of a specific regulation on web accessibility does not serve as a basis for noncompliance with the ADA's requirements; rather, the lack of specific regulations means that public accommodations have more flexibility in how to comply with the ADA's requirements. Without explicitly stating so, the recent statement tends to indicate that the DOJ is taking the position that although it may be helpful, it is not necessary to promulgate standards to ensure compliance with the ADA and may even be indicating that guidelines such as the WCAG—while helpful in providing a framework in which to show compliance with the ADA, are not regulations—and businesses have flexibility in articulating compliance with the ADA.

At this point, it is difficult to predict whether 2019 will bring positive change in terms of clarifying web accessibility regulation. As a result, even without concrete action by the DOJ, it is prudent practice for businesses to take a proactive approach to ensure their websites continuously comply with the newest standards—namely the WCAG 2.1—so as to avoid potential protracted litigation.

Kristen D. Perkins, a Fort Lauderdale partner with Hinshaw & Culbertson, handles complex insurance disputes involving employment, directors and officers, property, commercial and professional liability. Contact her at [email protected].

Paige S. Newman is an associate in the Fort Lauderdale office.