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How the New U.S. Justice Department Ruling Affects Website Compliance

May 19, 2022 | by Rachael Zahn
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The U.S. Justice Department released new guidance for public companies under the Americans with Disabilities Act. Click to learn more.

Making websites accessible is both the right and sensible thing to do – but in an ever-changing digital ecosystem, it can be a challenging task. In March 2022, the U.S. Department of Justice (DoJ) released new guidance for public companies under the Americans with Disabilities Act (ADA). This guidance reiterated the need for all public-facing websites, investor relations (IR), and corporate websites to meet accessibility standards along with the digital content that is posted on them. As a result, it is expected that the rise in accessibility-related litigation will only increase further. Such litigation increased 14.3 percent year over year in 2021 with an estimated 2,352 web accessibility lawsuits, and billions spent responding to demand letters. This leaves many IROs to decipher what is a true litigious threat, what must be done to remain compliant, and the risk involved. 

What Is Web Accessibility? 

Web accessibility means that websites, digital content, tools, and technologies are designed and developed so that people with disabilities can use them, according to the World Wide Web Consortium (W3C). Those disabilities include blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, photosensitivity, and combinations of these. Accessible websites make it possible for people to perceive, understand, navigate, and interact with the content on the Web. This may be with screen reader tools, video captions, or even through better design (text color contrast being one of the most common offenses). 

What Did the DoJ Announce about Web Accessibility? 

The DoJ said it will step up enforcement against websites that are not compliant with the ADA. The ADA, which was passed in 1990, prohibits discrimination against those with disabilities in “places of public accommodation.” In essence, the DoJ will treat public facing websites as places of public accommodation and therefore subject to regulation under the ADA. 

As the DoJ noted, “A website with inaccessible features can limit the ability of people with disabilities to access a public accommodation’s goods, services, and privileges available through that website—for example, a veterans’ service organization event registration form. 

For these reasons, the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.” 

What Are the Implications of the DoJ Announcement? 

The announcement formalizes what the Biden Administration is already doing by acting as if websites were subject to the ADA. Under the Biden Administration, the DoJ had already entered into numerous settlement agreements with businesses relating to the accessibility of their websites. In 2010, the Obama Administration had initiated rulemaking procedures to characterize all business websites as public accommodations, but a final ruling was not made. The Biden Administration has decided to make that ruling final. So, businesses need to understand the DoJ is going to enforce ADA standards.  

How Do I Know My Website Is Compliant? 

Things get tricky here. The DoJ makes it explicitly clear that there are no uniform standards on what makes a website “accessible” for purposes of the ADA. Rather, it states that “[b]usinesses . . . can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.” 

While there are no concrete standards, the DOJ did suggest that the Web Content Accessibility Guidelines, both of which the federal government uses for its own websites, are helpful examples of compliance. 

The DoJ cites these examples of what not to do: 

  • Poor color contrast. People with limited vision or color blindness cannot read text if there is not enough contrast between the text and background (for example, light gray text on a light-colored background). 
  • Use of color alone to give information. People who are color-blind may not have access to information when that information is conveyed using only color cues because they cannot distinguish certain colors from others. Also, screen readers do not tell the user the color of text on a screen, so a person who is blind would not be able to know that color is meant to convey certain information (for example, using red text alone to show which fields are required on a form). 
  • Lack of text alternatives (“alt text”) on images. People who are blind will not be able to understand the content and purpose of images, such as pictures, illustrations, and charts, when no text alternative is provided. Text alternatives convey the purpose of an image, including pictures, illustrations, charts, etc. 
  • No captions on videos. People with hearing disabilities may not be able to understand information communicated in a video if the video does not have captions. 
  • Inaccessible online forms. People with disabilities may not be able to fill out, understand, and accurately submit forms without things like: 
  • Labels that screen readers can convey to their users (such as text that reads “credit card number” where that number should be entered). 
  • Clear instructions. 
  • Error indicators (such as alerts telling the user a form field is missing or incorrect). 
  • Mouse-only navigation (lack of keyboard navigation). People with disabilities who cannot use a mouse or trackpad will not be able to access web content if they cannot navigate a website using a keyboard. 

What Happens If My Website Is Not Compliant? 

The penalties for failing to comply with the ADA can be costly. The federal government can levy fines of up to $75,000 for a business’ first violation and $150,000 for each subsequent violation. States and municipalities may impose fines as well. Moreover, the ADA provides a private right of action for individuals to sue non-compliant businesses for additional monetary penalties and/or injunctive relief. If the claimant is successful, the business will also be responsible for the claimant’s attorney’s fees. 

And make no mistake: website accessibility litigation is already on the rise. This includes “copycat” litigation in which a business is sued by a disabled plaintiff, settles, then other disabled plaintiffs file nearly identical lawsuits against the same business. Some law firms are also being accused of using ADA compliance to essentially shake down businesses for cash payments. In those instances, legal firms are capitalizing on the uncertainty over whether a website is really compliant. Businesses, lacking an ironclad definition of accessibility, are more likely to settle up.  

How Does Web Accessibility Affect Investor Relations? 

The DoJ announcement applies to the entire site, including the investor relations section. This includes everything you post on your IR site, including earnings announcements, filings, PDF presentations, image, text and video content. Unfortunately, noncompliant IR sites make a business liable for litigation, but of course the larger issue is that noncompliant sites exclude the millions of people who experience a disability.  This could also be viewed as a red flag for risk management, innovation, or a poor investor experience overall. 

The other challenge that arises is with the dynamic nature of web content. Content is often produced and published without accessibility in mind by a variety of producers that may not adhere to corporate accessibility standards. This is where an Accessibility Statement and Plan can be extremely helpful to reiterate web content standards and process for any resource that may have admin-level access or content publishing rights to your website. 

What Should IROs Do? 

We suggest working with your IR website provider or in-house team to run an Accessibility Audit to check your own level of compliance. An audit will identify how many accessibility issues are present, and what level they apply to – so that you know where to start. Some issues are easy to correct within a content management system, and others may need programming updates -- so it helps to have development support services at your side. Once you’ve established the level of accessibility compliance that you can maintain, publish an Accessibility Statement on your website. This helps to set expectations for website visitors, offers accessibility contacts and reiterates your commitment to compliance. 

At Investis Digital, we provide complimentary Accessibility Audits to help Investor Relations and Corporate Comms pros check their own compliance. To learn how we can help you, to learn how we can help you, contact us.  

We are also hosting a session on New Web Accessibility Guidance: How to Maintain Compliance and Manage Litigation Threats at the NIRI Annual Conference in Boston, June 5-7, 2022. Join us there, or stay tuned for a post-show recap. 

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