ADA Accessibility Guidelines for Web Based Content

Recently, we have been receiving inquiries from clients regarding Website Accessibility Guidelines under the Americans with Disabilities Act (the “ADA”). Some of our clients have received notices from third party website reviewers regarding the ADA compliance of their websites and I would be remiss not to mention this issue to you.  There have been a number of lawsuits under the ADA alleging website inaccessibility to date.  The Department of Justice (the “DOJ”) published the Americans with Disabilities Act Standards for Accessible Design in September 2010. These standards state that all electronic and information technology must be accessible to people with disabilities.  However, it offered no specific requirements and the discussion from the DOJ has been that something will be forthcoming. The Standards simply state:

This law covers a variety of products, including computer hardware and software, websites, phone systems, fax machines, copiers, and similar technologies.

The ADA standards apply to commercial and public entities that have “places of public accommodation” which includes the internet. While the DOJ has yet to provide any specific information, it has let its position be known that Congress intended that the ADA cover advances in technology and website discrimination will not be tolerated. The DOJ’s public position was clarified in the following statement made during the Netflix case (Statement of Interest of the United States Department of Justice in NAD v. Netflix (page 9)):

"The Department is currently developing regulations specifically addressing the accessibility of goods and services offered via the web by entities covered by the ADA. The fact that the regulatory process is not yet complete in no way indicates that web services are not already covered by title III." 

The law affects any Americans with disabilities and their friends, families, and caregivers.  It also applies to any private employers with 15 or more employees, businesses operating for the benefit of the public and all state and local government agencies.

DOJ published a Supplemental Advance Notice of Proposed Rulemaking (SANPRM) in the Federal Register on May 9, 2016, addressing the application of technical accessibility requirements for State and local government websites. The SANPRM’s extended comment period ended on October 7, 2016. DOJ has stated that completion of accessibility rules for State and local governments will likely facilitate the creation of accessibility rules for entities offering public accommodations pursuant to the ADA.  Although specific regulations from the DOJ do not presently exist, DOJ has advised this fact does not support any inference that websites are not subject to the ADA and have previously suggested that, at a minimum, all commercial websites comply with WCAG 2.0 level AA guidelines as a guide on how to become accessible until the DOJ does issue specific regulations.  These guidelines  recommend that websites be, among other things: “Perceivable”, i.e., images and videos should have text based alternatives and designs that make it easier to see and hear content; “Operable” so that they are easy to use and navigate and work with any fonts or colors; “Understandable” such as easy to read and understand; and “Robust” in that it should evolve to incorporate accessibility functions in the future and be accessible from all forms of access points – mobile phones, tablets, etc.  Although we have not been specifically asked to advise on ADA related matters we are happy to assist you and/or web design personnel to become aware of such web accessibility issues. 

Carmel & Carmel P.C. is experienced in compliance matters for the real estate development and other industries.  In addition to its internationally known expertise in land sales regulation, the Firm is adept in implementing marketing programs, including those that are web based, as well as development of tailored terms and conditions, appropriate disclaimers, privacy policies and social media program compliance development.  For further information, contact Frank J. Carmel at 202.237.1775 or