The ADA and Website Accessibility – Legal Environment and Best Practices

By Jeff Lantz and Desire’e Martinelli

(This article has been edited for length. Read the full article here)

Current Status of the ADA and Website Accessibility

While the Department of Justice (“DOJ”) has made clear that the Americans with Disabilities Act (“ADA”) applies to business websites, to date, it has refused to develop specific regulations that can be used to measure compliance. Instead, under its recent “Flexibility Guidance,” the DOJ leaves it up to business owners as to what must be done to comply with the ADA, with the risk of financial consequences if their websites are found to be not in compliance.

What Do Website Users Want to Do on Your Website? Practical Considerations

The first issue that should be addressed is identifying what users want to do on your website, and whether there are any roadblocks to such matters for those who may have disabilities. For example, website users typically want to:

  • Navigate around a website to see other pages. If website navigation can only be done by using a mouse and the person cannot use a mouse, navigation will not be possible for that person.
  • Understand your content – text and contrast issues. If your website uses text in boxes where the text and background boxes are close in color, those with vision contrast issues likely won’t be able to read the text.
  • Understand imagery. People who are blind use screen readers, which tell them when they get to images. If you haven’t used alt tags in the code to describe images, this will be a high source of frustration because those people will know that there are images, but they won’t know what the images depict.
  • Submit Contact Forms – visual captcha considerations. Contact forms that rely on users to select images to prove that they are not a bot don’t work for those who are blind. Consideration must be given to having a way for visually impaired people to submit contact forms without such challenges.
  • Understand Video. As video is being increasingly used on websites, website owners should ideally ensure that videos have close captioning. If this is not possible, then video transcripts should be provided.
  • Make purchases. If you’re selling something on your website, it’s critical that users be able to understand what is being sold and the various product options that may exist and be able to review orders and purchase products in the same manner as someone without disabilities.

Although the DOJ provides website owners with wide latitude for achieving ADA compliance, website owners should ensure at the outset that basic website usability objectives are achieved for those who may have accessibility issues.

Seeking Clarity from the DOJ – Recent Efforts and the 2022 DOJ “Flexibility Guidance”

While the DOJ made clear that business websites must comply with the ADA, they have failed to provide specific regulations regarding compliance. Instead, they provided a list of aspects that should be considered and leave it to business owners to determine how they will comply with the ADA. The DOJ has also previously provided a “safe harbor” by stating that noncompliance with certain recognized accessibility best practices does not equal noncompliance with the ADA.

Department of Justice Initiative on Web and Mobile App Accessibility

In a significant move towards digital inclusivity, the Department of Justice (DOJ) announced a notice of proposed rulemaking under Title II of the Americans with Disabilities Act (ADA) on July 25, 2023. This rulemaking is intended to provide clarity on the obligations of public entities, primarily at the state and local government levels, as they increasingly transfer their activities to the online sphere.

While the DOJ’s actions mark a progressive stride for public entities under Title II of the ADA, it’s noteworthy that, as of the current date, no specific guidelines have been issued regarding compliance standards for businesses. This delineation underscores a gap in the regulatory framework, where private sector website accessibility standards are yet to be defined by the DOJ. As such, companies seeking to proactively make their websites accessible should consider the DOJ’s existing flexibility guidance and best practices until formal regulations are established.

The Flexibility Guidance

The DOJ has the authority to promulgate regulations under the ADA. After years of failure by the DOJ to provide clarity concerning the applicability of the ADA to websites and the concurrent increase in lawsuits concerning the ADA and website accessibility, on February 28, 2022, 181 advocacy groups published a Joint Letter to Enforce Accessibility Standards (the “Joint Letter”) to Kristen Clark, the head of the US DOJ. The groups called for the DOJ to “adopt enforceable online accessibility standards by the end of the current Administration.”

In response to the Joint Letter, in March 2022, the DOJ issued Guidance on Web Accessibility and the ADA (the “Flexibility Guidance”) for state and local governments and businesses covered under the ADA.

Importantly, this Guidance does not require that any specific guidelines be achieved for website compliance with the ADA. Instead, this guidance provides flexibility to website owners to determine what must be done to make their websites compliant with the ADA (which is why this guidance is being referred to as the “Flexibility Guidance”).

Key points of the Flexibility Guidance are:

  • The DOJ now equates “places of accommodation” in Title III of the ADA to “businesses open to the public” by providing that Title III of the ADA prohibits

… discrimination against people with disabilities by businesses open to the public (also referred to as “public accommodations” under the ADA).

  • The DOJ notes that a website with inaccessible features can limit the ability of people to access a public accommodation’s goods, services, or privileges available through that website, and that:

For these reasons, the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web. (Underline added, boldface in original.)

  • The DOJ further notes that:

Even though businesses … have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication, they still must ensure that the programs, services, and goods that they provide to the public—including those provided online—are accessible to people with disabilities.

(Underline added, boldface in original.)

After making it clear in the Flexibility Guidance that business websites must comply with the ADA,[1] the DOJ failed to offer standards or regulations concerning exactly what must be done to comply with the ADA. Instead, the DOJ provides the following:

Examples of what businesses should do to make websites accessible include (but are not limited to) the following practices:

  • Color contrast in text – ensuring that text can be read by those with color blindness from backgrounds that may have a similar color as the text
  • Text cues when using color in text – such as using red text to denote a required form field that must be completed
  • Text alternatives (“alt text”) in images
  • Video Captions
  • Online forms – ensuring that forms can be used by those with disabilities
  • Text size and zoom capability
  • Headings – using techniques so that visually impaired website users understand the sections of a page
  • Keyboard and mouse navigation – users should be able to navigate a website without having to use a mouse
  • Checking for accessibility – using manual and automated tool checks to better understand potential problems
  • Reporting for accessibility issues – the DOJ seems to imply that website owners should offer a way for users to report website issues.

(information after the dashes added to provide clarity)

In order to further emphasize that this list is not exhaustive, the DOJ further states that:

This is not a complete list of things to consider.

Flexibility Guidance Revision and Potential Safe Harbor

Interestingly, it appears that the original Flexibility Guidance has been revised.

  • The DOJ Flexibility Guidance, as originally published, included what can be thought of as a “safe harbor” provision. This safe harbor provision stated that if a website does not comply with certain recognized accessibility best practices (such as Level AA of the WCAG – discussed below), this does not mean that the website is not in compliance with the ADA. Strangely, this “safe harbor” language was not included in the updated “Flexibility Guidance.”
  • Although the DOJ did not include the “safe harbor” language in the updated Flexibility Guidelines, the DOJ previously indicated that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” As a result, a business website might be compliant with the ADA, even if it does not strictly comply with the WCAG guidelines.

Will the DOJ Issue Specific Website ADA Regulations?

On July 11, 2022, U.S. Senator Patty Murray, Chair of the Senate Health, Education, Labor and Pensions (HELP) Committee, sent a letter to the Department of Justice requesting that it create more specific regulations as to how the ADA applies to websites. The letter, which was signed by eleven other senators, requested that the DOJ provide organizations with clear guidelines for making their websites and digital assets accessible to everyone and avoiding digital accessibility lawsuits.

On July 29, 2022, the DOJ announced that they would begin the advanced rulemaking process for ADA Title II digital accessibility regulations (which would apply to states and local governments) in April 2023, picking up where they dropped off in 2017. The DOJ, however, did not address rulemaking for the website accessibility of businesses, which are covered under Title III of the ADA.

On July 25, 2023, the Department of Justice (DOJ) issued a Notice of Proposed Rulemaking, signaling a proactive step in drafting new regulations to enhance web and mobile app accessibility. This notice marks the commencement of a meticulous rule-writing process by the DOJ, aimed at establishing clear and actionable guidelines under Title II of the Americans with Disabilities Act (ADA) for public entities. As this process unfolds, stakeholders and the public await the finalized rules that will shape the future of digital inclusivity for individuals with disabilities. However, it is important to note that these guidelines will only apply to public entities; as such, private entities will need to consider case law and DOJ guidance to determine the best course of action for website accessibility.

Federal ADA Website Case Law

As of September 2022, there have been no U.S. Supreme Court cases considering the applicability of the ADA to websites, and only two federal appellate court cases that considered the applicability of the ADA to websites (one of which was subsequently vacated). Both of these cases occurred prior to the release of the Flexibility Guidance and concerned the threshold issue of whether the applicable business website was subject to the ADA (while today, the issue would be more properly framed as whether the website complied with the ADA).

 

Robles v. Domino’s Pizza, LLC

In Domino’s Pizza, a visually impaired customer brought a lawsuit after he was unable to order on Domino’s website. The 9th Circuit Court of Appeals held that Domino’s was required to make its website ADA-compliant, as the website served much like a physical store in which customers could order food. Specifically, the court noted that:

Customers use the website and app to locate a nearby Domino’s restaurant and order pizzas for at-home delivery or in-store pickup. This nexus between Domino’s website and app and physical restaurants—which Domino’s does not contest—is critical to our analysis.6

We need not decide whether the ADA covers the websites or apps of a physical place of public accommodation where their inaccessibility does not impede access to the goods and services of a physical location.

The court thus found that:

Domino’s website and app facilitate access to the goods and services of a place of public accommodation—Domino’s physical restaurants. They are two of the primary (and heavily advertised) means of ordering Domino’s products to be picked up at or delivered from Domino’s restaurants. We agree with the district court in this case—and the many other district courts that have confronted this issue in similar contexts —that the ADA applies to Domino’s website and app, which connect customers to the goods and services of Domino’s physical restaurants.

 

Gil v. Winn-Dixie Stores, Inc.

In Winn-Dixie, a long-time visually impaired customer of Winn-Dixie was unable to order a prescription for in-store pickup on that company’s website or to link prescription coupons to the customer’s Winn-Dixie rewards card. The customer additionally complained that the Winn-Dixie website was not compatible with his screen reader software, which was used to vocalize website content.

Unlike Domino’s, the 11th Circuit Court of Appeals held that the Winn-Dixie grocery store website was not a “place of public accommodation” and noted that:

“Absent congressional action that broadens the definition of “places of public accommodation” to include websites, we cannot extend ADA liability to the facts presented to us here, where there is no barrier to the access demanded by the statute.”

Thus, the court held that the ADA did not apply to websites.

A week after the finding by the 11th Circuit Court of Appeals, the plaintiff filed a request for an en banc panel of judges to reconsider the ruling. At the end of 2021, the full Circuit Court of Appeals found that the original case had become moot, and the court vacated its prior decision.

Dissatisfied with this finding, Winn-Dixie filed a request for rehearing en banc on whether the appeal and underlying case were moot. On March 2, 2022, the Circuit Court of Appeals denied Winn-Dixie’s request, putting an end to six years of litigation.

State Accessibility Regulation Case Law

To date, most state law accessibility cases have been brought under California’s Unruh Act, the state’s equivalent to the ADA. Plaintiffs have been successful in at least two cases: Davis v. BMI/ BND Travelware (2016) and Thurston v. Midvale Corp. (2018, aff ’d Ct. App. 2019). In the Thurston case, the appellate court affirmed a lower court order requiring the Midvale Corporation to make its website conform with the WCAG 1.0 Level AA guidelines, as well as to pay $4,000 in statutory damages plus attorneys’ fees.

In another California Court of Appeal Case (Martinez v. Cot’n Wash, Inc.) for the Second Appellate District, Division One, the Court disagreed with the DOJ’s broad interpretation with respect to businesses that do not have a physical location. Instead, the Court in Martinez found that the ADA does NOT apply to business websites where the business does not also have a physical presence. The Court noted that Congress has not chosen to amend the ADA to include websites, and that no regulations have been adopted regarding any standards of ADA compliance for websites.

In accordance with these state-level determinations, many firms are using the WCAG Level AA guidelines as a benchmark for accessibility compliance.

WAVE Analysis of Primary Website Pages

WAVE is a suite of evaluation tools that help businesses make their web content more accessible to individuals with disabilities. WAVE can identify many accessibility and WCAG errors, and it also facilitates the human evaluation of web content.

The WAVE tools should be used for both desktop and mobile versions of a website, as the same website, which may be compliant in the “desktop” version, may not be compliant in the “mobile” version without changes being made.

Should Law Firms Use an Accessibility Plugin to Make a WordPress Website Compliant?

It’s important to understand that accessibility plugins DO NOT make a website ADA-compliant. Thus, the term “ADA Plugin” is a misnomer, and these plugins should be better considered “accessibility plugins.”

What is an Accessibility “Plugin”?

Accessibility plugins (and other similar applications) are sometimes referred to as “overlays,” as they “overlay” the regular web page content presented by a browser and allow a user to modify aspects of the content presentation (such as to make text larger or increase contrast). One of the most popular plugins is one developed by UserWay, which offers both free and paid plugins. For those who have minor accessibility needs and who may not require a screen reader, an accessibility plugin may be helpful.

Should an Accessibility Plugin Be Used?

There is a split of opinion as to whether an accessibility plugin should be used, which may be summarized as follows:

Yes, an Accessibility Plugin should be used. Top accessibility plugins are designed to address a number of accessibility issues, such as increasing font size, contrast, and many other matters. When a website owner adds an accessibility plugin, they help those who may be visually or otherwise challenged better navigate a website. They may also potentially deter a lawsuit, as they show that a website owner has taken actions to make a website more accessible. However, the owners of some websites using accessibility plugins have been sued, but it is unclear if the use of the accessibility plugin was a primary factor in filing the lawsuits.

No, an Accessibility Plugin should not be used. Under this view, accessibility plugins can interfere with screen readers, and thus make it harder for those who are visually impaired to navigate a website than if no plugin was added. This view suggests that a website owner should take the position that someone with visual or other disabilities will already have a screen reader, which may (or may not) be the case.

What Does the DOJ Say?

In the Flexibility Guidance, the DOJ notes that:

Automated accessibility checkers and overlays that identify or fix problems with your website can be helpful tools, but like other automated tools such as spelling or grammar checkers, they need to be used carefully.

Thus, the DOJ neither promotes nor discourages the use of accessibility plugins.

What do organizations devoted to helping those visually impaired suggest with respect to Accessibility Plugins?

We spoke with Chris Danielsen, Director of Public Relations for the National Federation of the Blind, for their organization’s opinion on the use of accessibility plugins. This organization did not offer a definitive opinion on whether an accessibility plugin should (or should not) be used. Instead, they advised that website owners should take care to make their websites were otherwise compliant with best practices, especially with respect to using alt tags and making sure that a website can be easily navigated by those who are visually impaired.

What Damages Could Be Assessed If I Fail to Make My Website ADA Compliant?

Department of Justice Lawsuits

Under the ADA, the DOJ is authorized to file lawsuits in Federal court in cases of “general public importance” or where a pattern of discrimination is alleged. If a company is sued by the DOJ and loses, “it will not have to pay the Department’s attorneys’ fees, but may be liable for monetary damages for compensatory relief (but not punitive relief) and civil penalties. Civil penalties may run as high as $92,383 for a first violation or $184,767 for a subsequent violation.”

The DOJ has brought a number of actions in recent years, including actions against:

  • Hy-Vee, Inc.
  • The Kroger Co.
  • Meijer, Inc.
  • Rite Aid Corporation
  • Teachers Test Prep, Inc.
  • H&R Block.

Common violations included:

  • Images, buttons, and form fields are unlabeled or have inaccurate alt text
  • Pop-ups are not reported to screen readers
  • Tables are missing header information
  • Missing or incorrect captions

The ordered actions from the DOJ tended to include:

  • WCAG Level AA Conformance (thus, business owners may want to consider Level AA compliance with their websites)
  • Hiring a Website Accessibility Consultant
  • Creating a Website and Mobile Application Accessibility Policy
  • Developing a User Accessibility Testing Group comprised of individuals with different disabilities
  • Annual Accessibility Training
  • Ongoing Reporting Requirements

While the DOJ also issued small fines in some cases (generally around $5,000), the major costs to defendants were attorneys’ fees and the compliance costs noted above.

Private Party Actions

Private parties (without the assistance of the DOJ) may bring lawsuits to enforce Title III of the ADA, the section of the ADA that applies to business website accessibility matters. Under the ADA, a private party may potentially be entitled to reasonable attorneys’ fees and equitable relief (such as a court order requiring a company to make its website WCAG Level AA compliant) but cannot be awarded financial damages. However, if a business chooses to settle to avoid litigation, a plaintiff may be awarded damages in accordance with the terms of a settlement agreement.

Under various state laws, private parties may also be entitled to compensatory damages. For example, in California, a successful plaintiff could be entitled to $1,000 per offense under the California Disabled Persons Act and $4,000 per offense under the Unruh Act, the state’s equivalent to the ADA.

Website accessibility damages and attorneys’ fees (both for the defense and fees ordered to be paid to the plaintiff’s counsel) and complying with court-ordered equitable relief can be exorbitantly expensive. Thus, it is typically a best practice to proactively address accessibility concerns to minimize the risk of being involved in costly litigation.

About the Authors

Jeff Lantz

Jeff Lantz is an attorney and the CEO of Esquire Interactive LLC, an interactive digital marketing agency that has served hundreds of attorneys since 2009, and which developed the ePRESQ™ platform for custom law firm WordPress websites, FirmMetrics™, and FirmReviews™.

Jeff is passionate about helping attorneys and legal marketers develop successful integrated marketing plans. He has given dozens of presentations and wrote numerous published articles about law firm marketing. He is also an ABA book author – Internet Branding for Lawyers: Building the Client-Centered Website.

He previously founded and sold three social media companies, practiced law as a corporate/securities attorney at Snell & Wilmer, and served as a senior attorney for BHP Billiton and as the General Counsel for Westar Aerospace & Defense Group. He graduated from Indiana University with an MBA in Finance, and with a J.D. (cum Laude), where he was a member of Law Review.

Desire’e Martinelli

Desire’e Martinelli is a dynamic, multi-faceted professional, currently serving as the Director of Marketing & Analytics at Esquire Interactive. With a strong background in business and law, she excels in website development, branding, and Internet marketing strategies tailored specifically for law firms and attorneys.

Desire’e leverages her deep understanding of the legal industry, gleaned from her extensive experience as a law firm marketing director, business and IP attorney, and entrepreneur. She skillfully navigates the unique marketing challenges law firms face, driving strategic initiatives to optimize their online presence and overall brand.

Desire’e holds a Juris Doctor degree, summa cum laude, from the University of Mississippi School of Law, with a concentration in business law. She developed a fervor for intellectual property, which was the cornerstone of her legal practice following graduation. As an attorney, Desire’e assisted clients with business formation, corporate matters, employment issues, and intellectual property matters.

Aside from her role at Esquire Interactive, Desire’e maintains an active presence within the legal community and is a business owner. She is a frequent presenter at Bar Association events and Continuing Legal Education (CLE) seminars, sharing her wealth of knowledge and experiences with fellow attorneys and legal professionals.

Catherine Sanders Reach serves as director of the NCBA Center for Practice Management.