While most websites of businesses, including banks and financial services providers, should be accessible to individuals with disabilities, questions exist as to how this requirement is enforced. On September 25, 2018, the U.S. Department of Justice issued a letter to a member of the U.S. House of Representatives in which it took the position that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” The DOJ’s position, significantly, does not require conformance with the voluntary Web Content Accessibility Guidelines (WCAG) 2.0 to comply with the ADA in all instances. The DOJ expressly allows for flexibility in how individuals with disabilities are provided access to digital and online content, but does not provide guidance in the implementation of such flexibility.
The DOJ’s letter responds to a June 2018 inquiry from House members of both parties that asked the DOJ to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles” absent clear guidance from the DOJ on website accessibility. In its response, the DOJ noted that for more than 20 years, the DOJ has interpreted the ADA to apply to websites of places of public accommodation. The DOJ’s response also clarified that the absence of a specific regulation does not mean that websites are not subject to the ADA’s accessibility requirements. The DOJ indicated in its letter a willingness to work with Congress on legislative action to address the increased website accessibility litigation risk faced by businesses.
The flexible approach to website accessibility expressed by the DOJ may provide businesses with the ability to take the position that the ADA does not necessarily require conformance with the WCAG and that businesses may have the flexibility to provide substantially equivalent access to online information through means other than meeting the WCAG criteria.