Employers are often familiar with Title I of the American with Disabilities Act (“ADA”), which prohibits discrimination on the basis of disability in employment. But many are not as familiar with Title III of the ADA, which prohibits discrimination in places of “public accommodation,” and traditionally focused on the physical inaccessibility of brick-and-mortar facilities.

Unfortunately, the ADA does not address online “places of public accommodation” such as websites, mobile apps, or other web content. Further, the regulations promulgated by the Department of Justice (“DOJ”)–the federal agency responsible for adopting accessibility regulations and standards for the ADA—also fail to address the accessibility standard for an employer’s online space. Additionally, courts posed with such claims are split as to whether the term “public accommodation,” in Title III of the ADA refers to physical, brick-and-mortar locations or also includes an employer’s online space. With little guidance from the ADA, regulations, or courts, what are employers to do to ensure their websites and online content is “accessible” and compliant?

It looked as though employers would get their answer in March of 2022 when the DOJ finally issued guidance on “web accessibility.” Regrettably, however, the DOJ failed to establish any official standard for online accessibility under Title III, leaving businesses and employers with general principles regarding website accessibility. And although the DOJ Guidance highlighted the importance of providing individuals with disabilities equal access to online information, including providing employers examples of common website accessibility problems, no official standard was offered to assist employers in complying with Title III.

Nonetheless, the DOJ Guidance reiterates that online accessibility is a priority for the DOJ, signaling that ADA online compliance should be of high priority to employers. Indeed, the DOJ recently announced its intent to begin the rulemaking process to enact website accessibility regulations under Title II (the ADA section applicable to state and local governments). This may be an indication that regulations applicable to private businesses and employers subject to Title III may follow in both form and substance.

In the meantime, however, website accessibility litigation could be on the rise for employers who fail to ensure their online platforms are accessible to individuals with disabilities. Consequently, employers should take measures to mitigate their risks and monitor their web content accessibility. First, the DOJ Guidance did provide a link to the World Wide Web Consortium’s Web Content Accessibility Guidelines (“WCAG)” 2.1. Level AA, which sets forth criteria and helps explain how to make web content more accessible to people with disabilities. The DOJ’s endorsement of WCAG reinforces that WCAG is a helpful guide for employers, but it is not the official standards of accessibility under the ADA. Employers should use WCAG as a tool toward making and maintaining web content that is accessible to individuals with disabilities, while being mindful that WCAG is not the standard.

Additionally, employers should think broadly as to what web content could fall under Title III of the ADA. Recent cases highlight that Title III may not only include an employer’s external-facing websites to the public but may also include internal web content and the content of third parties. For example, internal workplace technology such as time records, new hire employee paperwork, and employee benefit information should be reviewed for accessibility. Employers can take steps to ensure external, internal, and third-party web content is accessible to individuals with disabilities in order to comply with their obligations under the ADA until concrete standards are provided. In the meantime, employment law attorneys at Davenport Evans are closely monitoring these issues and stand ready to help with questions.

Sign up for eNews

Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.