Ahead of the 33rd anniversary of the Americans with Disabilities Act (ADA), on July 25, 2023, the White House announced that the U.S. Department of Justice (DOJ) will soon release a proposed new rule to establish accessibility standards for state and local government web and mobile app-based services. The purpose of the proposed rule is to create clearer standards for state and local governments to follow in order to provide equal access to their services, programs and activities for people with disabilities, as required under the ADA. The DOJ has sent the proposed new rule to the Federal Register, where it will soon be published and available for public review and comment for a period of 60 days.

The forthcoming proposed rule will include suggested technical standards to ensure ADA compliance, including items such as text descriptions of images so people using screen readers can understand the image's content, captions on videos and enabling navigation through a keyboard rather than a mouse for those with limited use of their hands. Notably, this is the first time the DOJ has issued a proposed rule addressing website accessibility, which comes following the shift to online content as a result of the COVID-19 pandemic and in light of more and more state and local governments moving their programs and activities online. Until now, the DOJ has not provided any regulations setting out detailed standards for web content accessibility compliance for people with disabilities. Without specific guidelines of its own, the DOJ has instead interpreted the ADA's general nondiscrimination and effective communication provisions (whereby state and local governments and businesses open to the public must take steps to ensure their communications with people with disabilities are as effective as their communications with others) to apply to web accessibility.

In lieu of its own standards, the DOJ has historically directed state and local governments (under Title II of the ADA) and businesses that are open to the public (under Title III of the ADA) to guidance addressing how to best ensure accessibility of website features, including the Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards. The WCAG are published by an international standards organization for the internet and seek to make web content more accessible to people with disabilities, while the Section 508 Standards, which the federal government uses for its own websites, contain scoping and technical requirements for internet technology to also ensure accessibility and usability by individuals with disabilities.

Key Takeaways for Employers

While the forthcoming DOJ proposed rule specifically addresses application of the ADA to state and local governments under Title II of the ADA, all employers with an online presence (particularly those with businesses that are open to the public) would be wise to stay keenly updated on its progress. As many private employers with public websites are all too aware, plaintiffs' attorneys have to date attempted to take full advantage of the lack of authoritative regulations or guidelines connecting web and internet accessibility with the ADA and other state and local anti-discrimination laws. This lack of guidance has also hindered many courts in their ability to cite and follow clear technical regulations in their rulings and opinions on the subject and has caused difficulties for entities seeking to comply with nondiscrimination web accessibility requirements. In that sense, the DOJ's forthcoming proposed rule should help streamline and broadcast generally acceptable policies and practices that all employers should follow to best comply with the ADA and other similar laws as they evaluate their own web accessibility for people with disabilities. Once the proposed rule is published, another Duane Morris Alert will undertake a deeper dive of the specific proposed regulations and provide employers with additional analysis of the rule's conceivable future impact on private employers and businesses, as well as best practices to maintain compliance and reduce the risk of litigation.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, Gregory Slotnick, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.