DOJ Finalizes Its Stance on ADA Title II and Web Accessibility

On April 24, 2024, the U.S. Attorney General signed into law a final rule on Title II of the Americans with Disabilities Act (ADA) that ensures disabled individuals will have access to website content and mobile applications. This follows a period of rulemaking and a joint Dear Colleague Letter from the Department of Justice (DOJ) and Department of Education (DOE) reminding colleges, universities, and other postsecondary institutions of their responsibilities toward individuals who use their websites and applications for services, programs, and activities.

The rule clarifies the obligations that state and local governments have toward their website and application users who access public programs and services – such as the courts, healthcare, education, voting, emergency services, transportation, and many others – through the web.

The new rule is a truly significant development, so let’s take a look at what it will mean for web accessibility going forward, and how your organization can prepare.

First things first: What is Title II of the ADA?

For the uninitiated, Title II of the Americans with Disabilities Act (ADA) applies to state and local government entities, and, in subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by state and local government entities. Put simply, it describes the non-discrimination obligations for U.S. state and local governments.

What the new rule requires and why it matters

Make no mistake: while the new regulation may seem like an insignificant technicality to some, this is pretty a big move from the DOJ. The new regulation demonstrates a commitment to taking real action toward tackling web accessibility issues by giving government entities clear directions with a tangible and unified regulation to follow. This announcement has been anticipated since the DOJ began to place focus on clarifying Title II’s applicability to websites and applications and comes after many years of criticism of what was widely considered to be vague and unfocused guidance from the DOJ. Beyond providing some clarity on how to achieve web accessibility, the rule also offers an indication as to the type of web accessibility regulations that are likely to be applied to private businesses and organizations in the future.

The rule also appeases commentators who were less than impressed with the DOJ’s prior accessibility guidance, which was accused of being inadequate for the task as it contained no new insights and failed to address the legal uncertainty that still exists around the area of web accessibility compliance in general.  

The new rule should go some way to reassuring those with such ongoing concerns about the state of web accessibility compliance law that something tangible is finally arriving, and comes as a great relief to many who have wanted to keep up with accessibility requirements but have found themselves unable to follow what is demanded of their websites despite their best efforts. 

In other words, the significance of the new rule should not be underestimated. Apart from anything else it brings, it is highly likely that, as in prior rulemaking efforts, regulations of a similar form and substance will follow that apply not just to government entities but also to private organizations. 

What the new rule contains and how to prepare

The new rule follows the DOJ’s August 2023 proposed stance on Title II and contains specific accessibility requirements for public entities at the state, local, and district levels. It requires websites, applications, and digital documents (such as PDFs, presentations, spreadsheets, and Word files) conform to the Web Content Accessibility Guidelines (WCAG) 2.1 A/AA. It also requires accessibility for video, audio, and social media posts.

Limited exceptions do apply, such as static, archived website materials or where strict conformance would be unduly burdensome or fundamentally alter the user’s digital experience if the non-conformance only has a minimal impact on access by individuals with disabilities. State entities may also provide inaccessible content in alternative versions that are accessible if they are prohibited from making the original content accessible due to technical or legal limitations.

The best course of action for state entities is to make efforts to become more conscious of whether their existing web-based content, services, and activities are equally accessible to people with disabilities. If they are not, some effort will need to be made to remove the barriers that currently exist. 

Some expert commentators still have deep concerns about the future of web accessibility legislation, citing how long it has taken the DOJ to get to this early stage, as well as the truly urgent need for Title III regulations in the face of the ongoing flood of private sector litigation, amongst other things. 

However, despite these real and very reasonable concerns, the announcement of the new Title II ADA Web Accessibility Regulations remains a resolute win for all those concerned with making web accessibility a priority in the U.S., and it’s an absolute cause for celebration for those who thought such a regulation might never arrive. 

Curious to see how your website stacks up to WCAG 2.2 AA regulations? Get a complimentary website accessibility scan to help you take the first steps to achieving compliance.