The US Department of Justice (DOJ) recently reached settlement agreements with Hy-Vee and Rite Aid in response to the DOJ’s concern that the companies’ vaccine registration websites were not accessible to people with visual impairment and other disabilities. The DOJ also recently reached a settlement with the Champaign-Urbana Transit District (MTD) that addresses website accessibility.
The agreements signal an increase in the DOJ’s enforcement efforts on website accessibility, after almost no activity in this area under the Trump administration. With increased law enforcement activity and thousands of private lawsuits filed each year over allegedly inaccessible websites, businesses should make digital accessibility a top priority for 2022.
DOJ Web Accessibility Enforcement
The settlement agreements are the result of compliance reviews conducted by the DOJ under Titles II and III of the Americans with Disabilities Act (ADA). Title II applies to state and local government entities, and Title III applies primarily to public accommodations, which include hotels, restaurants, theaters, grocery stores, clothing stores, shopping malls, banks , hospitals, private schools and universities, and other physical locations that are generally open to the public.
The DOJ has the authority to enforce Titles II and III of the ADA through regulatory investigations and enforcement actions. Neither the ADA nor its regulations expressly address websites or other online platforms. Nonetheless, the DOJ’s longstanding position is that the ADA applies to state and local government websites (under Title II) and public accommodations (under Title III). The courts, however, have failed to reach a consensus on the issue in private party litigation focused on whether websites are subject to Title III of the ADA. For example, some courts have determined that Title III applies to websites regardless of their connection to a physical location, while other courts have held that the ADA applies to a website only if the website has a connection to a physical location. In an April 2021 decision, the United States Court of Appeals for the Eleventh Circuit found that the websites themselves are not a place of public hosting under Title III, but later reversed that decision for technical reasons.
For now, we expect the DOJ to assert broad enforcement authority with respect to websites operated by a public institution or governmental or local entity.
Website accessibility issues raised in settlement agreements
As seen in other DOJ settlement agreements, the Rite Aid and Hy-Vee agreements require compliance with the Web Content Accessibility Guidelines (WCAG), a voluntary set of performance criteria that have become a benchmark. for courts and industry when assessing whether websites and other online sites contained are sufficiently accessible to people with disabilities. The Rite Aid and Hy-Vee agreements specifically require compliance with WCAG 2.1, Level AA. The Rite Aid Agreement also states that the company may use other methods or technologies to achieve accessibility and usability, so long as those methods or technologies result in equally effective or superior accessibility and usability. Both agreements report issues on websites with unlabeled or inaccurately labeled images, buttons, links, headers and form fields; problems navigating the website using the keyboard (rather than the mouse); and pop-ups.
Both settlement agreements impose additional obligations on companies to train employees, communicate with disabled website users, test and verify compliance, and report to the DOJ.
Similar to the Rite Aid and Hy-Vee Settlement Agreements, the MTD Settlement requires MTD to ensure that all of its websites, web content and mobile applications comply with WCAG 2.1, Level AA. MTD is also required, among other things, to invest at least $100,000 over the term of the agreement “to improve its services to people with disabilities”.
Implications of recent settlement agreements
These settlement agreements signal increased enforcement activity by the DOJ regarding website accessibility after the Trump administration deprioritized the issue.
Settlement Agreements are also notable for adopting the newer WCAG standard, 2.1, as earlier DOJ Consent Decrees and Settlement Agreements reference an older standard, 2.0, which has fewer criteria for compliance.
The renewed enforcement activity comes even though the DOJ has not conducted rulemaking regarding website accessibility. In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM), seeking public comment on various topics related to website accessibility for public entities and public accommodations subject to Title II or Title III. of the ADA, stating, in part, as follows:
The ADA’s promise to provide an equal opportunity for persons with disabilities to participate in and benefit from all aspects of American civic and economic life will only be realized in today’s technologically advanced society if it is clear for state and local governments, businesses, educators and other public places that their websites need to be accessible. Accordingly, the Department is considering amending its Title II and Title III regulations to require public entities and public institutions that provide products or services to the public through websites on the Internet to make their sites accessible and usable. by persons with disabilities within the framework established by the ADA.
After bifurcating the regulations to address Title II and Title III separately, the DOJ issued a Supplemental Notice of Proposed Rulemaking in 2016 specifically addressing web accessibility under Title II. In 2017, however, the DOJ withdrew the ANPRMs, stating that it was evaluating whether enacting accessibility regulations for web-based information and services is necessary and appropriate.
The DOJ has not initiated any new regulatory proceedings in this area since the 2017 withdrawal. Recent settlement agreements reflect a renewed DOJ interest in website accessibility, even in the absence of regulatory guidance and questions. open on the applicability of the ADA to websites.
 See 2010 Notice of Proposal for Accessibility of Information and Web Services by National and Local Government Entities and Public Housing Regulations, 75 Fed. Reg. 43,460, 43,462 (July 26, 2010).
 81 Fed. Reg. 28,658 (May 9, 2016).
 82 Fed. Reg. 60,932 (December 26, 2017).