DOJ Web Access Guidance Provides High-Level Overview

​The U.S. Department of Justice's (DOJ's) guidance earlier this year on Web accessibility and the Americans with Disabilities Act (ADA) gave covered entities flexibility in compliance while highlighting common barriers and fixes.

"Most experienced practitioners in Web accessibility found it to be much ado about nothing because it doesn't say anything that the DOJ has not already said in other venues," said Kristina Launey, an attorney with Seyfarth in Sacramento, Calif. "Other readers of it, however, appreciated it as an all-in-one-place, mostly clear explanation of general principles of what it means for a website to be accessible and the DOJ's position."

Bret Cohen, an attorney with Nelson Mullins in Boston, added that companies should carefully consider whether their websites are accessible to individuals who are blind, deaf or hard of hearing, or unable to use a mouse.

Accessible Features

Examples of what businesses should do to make websites accessible include the following best practices, the DOJ noted:

• Color contrast in text. Sufficient color contrast between the text and the background allows people with limited vision or colorblindness to read text that uses color.
• Text cues when using color in text. When using text color to provide information (such as red text to indicate required form fields), including text cues is important for people who cannot perceive the color. For example, include the word "required" in addition to red text for required form fields.
• Text alternatives ("alt text") in images. Text alternatives convey the purpose of an image, including pictures, illustrations and charts. Text alternatives are used by people who do not see the image, such as people who are blind and use screen readers to hear the alt text read out loud. To be useful, the text should be short and descriptive.
• Video captions. Videos can be made accessible by including synchronized captions that are accurate and identify any speakers in the video.
• Labeled online forms. Labels, keyboard access and clear instructions are important for forms to be accessible. Labels allow people who are blind and using screen readers to understand what to do with each form field, such as by explaining what information goes in each box of a job application form. It is also important to make sure that people who are using screen readers are automatically informed when they enter a form field incorrectly. This includes clearly identifying what the error is and how to resolve it—such as an automatic alert telling the user that a date was entered in the wrong format.
• Sufficient text size and zoom capability. People with vision disabilities may need to be able to use a browser's zoom capabilities to increase the size of the font so they can see things more clearly.
• Appropriate headings. Building visual headings into the website's layout when designing the page allows people who use screen readers to navigate and understand the layout of the page.
• Allowing keyboard access and mouse navigation. Keyboard access means users with disabilities can navigate Web content using keystrokes, rather than a mouse.
• Accessibility checks. 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. A clean report does not necessarily mean everything is accessible. Also, a report that includes a few errors does not necessarily mean there are accessibility barriers. Pairing a manual check of a website with the use of automated checkers can give you a better sense of the website's accessibility.
• Reports on accessibility issues. Websites that provide a way for the public to report accessibility problems allow website owners to fix accessibility issues.

Significance of the Guidance

David Raizman, an attorney with Ogletree Deakins in Los Angeles, identified three "significant takeaways from the issuance of this guidance, many of which are more about what the DOJ did not say than what it did in the guidance."

First, "The DOJ is unlikely to regulate in this area, as it once said it would, or offer any truly helpful guidance on the more difficult questions that arise in website accessibility litigation," he said.

Second, while favorably referencing it, the DOJ has now twice rejected the legal effect of Web Content Accessibility Guidelines (WCAG), leaving businesses with no standard against which they can defend the accessibility of their websites. "For the most part, this is a good thing for business, which can clearly argue now that WCAG is not the standard, but whatever accessibility it does offer is adequate even if it does not meet WCAG standards," Raizman stated.

Third, the DOJ has clarified its position that all services and privileges of a business open to the public, including its website, are covered by the ADA and must be made accessible. The guidance "does not answer the critical question of whether certain online-only businesses are public accommodations covered by the ADA," he said.

WCAG's Relevance

While the DOJ adopted no technical standard, "the WCAG standards are essentially the only real game in town, so the DOJ's favorable mention of it in the guidance continues to make it relevant as a guide to the business community on how to achieve accessibility," Raizman said.

"An important area for employers to consider is accessibility for people with cognitive and learning disabilities," said Corinne Weible, co-director for the Partnership on Employment and Accessible Technology in Washington, D.C. The current WCAG include some requirements related to cognitive accessibility. "Examples include using plain language and consistent navigation to help users find what they need and understand the content," she said.