“For these individuals, digital accessibility errors
can present a significant barrier to participating on the web,” Romano says. “If left unchecked, it can lead to a costly lawsuit and damage your company’s reputation.” A year ago, the DOJ said it will step up enforce-
ment against websites that are not compliant with the ADA. Passed in 1990, the ADA prohibits disability discrimination in a wide range of areas. Title III of the ADA prohibits discrimination against those with disabilities in “places of public accommodation,” which refers to businesses that are open to the public (like banks, retail stores, and hotels). The DOJ has consistently taken the position
that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public ac- commodations, including those offered on the web. In essence, the DOJ will treat public-facing web- sites as places of public accommodation and therefore subject to regulation under the ADA. Te announce- ment formalizes what the Biden Administration is already doing. In 2010, the Obama Administration initiated
rulemaking procedures to characterize all business websites offering the goods or services of a public ac- commodation as public accommodations themselves,
What Is WCAG?
Web Content Accessibility Guidelines (WCAG) is developed through the W3C process, described at
www.w3.org/WAI/ standards-guidelines/w3c-process/. The World Wide Web Consortium (W3C) develops web
standards such as HTML and cascading style sheets. The W3C process is in cooperation with individuals and organizations around the world, with a goal of providing a single shared standard for web content accessibility that meets the needs of individuals, organizations, and governments internationally. The WCAG documents explain how to make web content
more accessible to people with disabilities. Web “content” generally refers to the information in a web page or web ap- plication, including: • Natural information such as text, images, and sounds • Code or markup that defines structure, presentation, etc.
but a final ruling was never made, as the rulemaking was withdrawn seven years later during the Trump Administration. Under the Biden Administration, the DOJ has
already entered into numerous settlement agreements with businesses relating to the accessibility of their websites. In addition, the DOJ last summer announced plans to commence a rulemaking to adopt web ac- cessibility standards for state and local government entities (which are regulated under Title II of the ADA), which may suggest that further action will be taken with respect to businesses covered by Title III. “Te Biden administration has decided to make
that ruling final,” explains Rachael Zahn, Global Vice President, Marketing & Research with Investis Digital. “So, businesses need to understand that the DOJ is going to enforce ADA standards.” When it comes to web accessibility, the historical
trend for most of the past 20 years was for plaintiffs to target websites and mobile apps, says Brandon Johnson, a Counsel at the law firm of Perkins Coie, LLP in Washington, DC. “Now, however, there are a growing number of attempts to extend the ADA to new technologies – like virtual reality and other types of platforms – in an effort to push the bounds of the law beyond websites and apps. And there’s certainly a market for these kinds of claims.”
What Constitutes a Threat? Take any litigation threat seriously, Johnson warns. He says some threats are better presented than oth- ers, but a demand letter or complaint should be dealt with thoughtfully and promptly. “Different types of plaintiffs may require different
types of strategies,” Johnson explains. “Some complain- ants may go away if you don’t respond to a demand letter, while others may already have a complaint drafted and waiting to be mailed. It’s important for companies to consult with counsel who can assess the relevant risks and advise accordingly.” Johnson says it can be helpful to understand the
complainant’s motivation, which may depend in part on their identity. “Individuals represented by plaintiffs’ firms are more likely to be seeking a quick settlement,” Johnson explains. “By contrast, disability advocacy groups often use these cases as a vehicle for impact
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