Website accessibility under the Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act has been a subject of much litigation for private entities.  Recent changes applying to public entities may give a clearer roadmap for private businesses on the issue of website and application accessibility.

On April 8, 2024, the Department of Justice, Civil Rights Division, signed the final rule under Title II of the ADA, which establishes specific requirements and provides clarifications regarding ADA compliance on web-based public-facing platforms.  These updates include the adoption of specific technical standards required by the ADA for making accessible the services, programs, and activities offered by State and local government entities to the public through the web and mobile applications (“apps”).

The ADA’s fact sheet accompanying the release of the final rule provides additional technical guidance about the specific Web Content Accessibility Guidelines (“WCAGs”) that will ensure that public entities’ web content and mobile apps are accessible to people covered by the ADA.

Notably, the rule specifies that WCAG Version 2.1, Level A and AA success criteria are the technical standards that public entities’ websites and apps must meet for ADA compliance.  These technical standards are similar to existing ADA Standards for Accessible Design, which provide standards for what is needed for a building to be physically accessible under the ADA, such as how wide a door must be or how steep a ramp can be.  Likewise, the WCAG technical standards can be used by website designers and app programmers to ensure that sites and apps are accessible.  For example, if a city lets people pay for public parking using a mobile app, that mobile app must meet WCAG 2.1, Level AA even if the app is run by a private company.

The final rule does provide exceptions for limited situations where certain types of web content and content in mobile apps do not have to meet WCAG 2.1, Level AA.  The Justice Department provides that, “It is important that state and local governments can prioritize so they can choose the most important content—like current or commonly used information—to make accessible to people with disabilities quickly.”

Pieces of web content that qualify for this limited exception include:

• Preexisting social media posts, that either may be archived or may no longer be relevant, accurate, or useful;
• Content posted by a third party where the third party is not posting due to contractual, licensing, or other arrangements with a public entity, because the state or local government may not be able to change the content third parties post;
• Archived web content that is outdated, repeated elsewhere, or no longer necessary; and
• Preexisting PDF documents.

The legislative aim of this final rule is to achieve greater inclusion by providing clarity on how to make sure web and app-based platforms are accessible for people with disabilities.  The Justice Department states that “By allowing individuals with disabilities to engage more fully with their governments, accessible web content and mobile apps also promote the equal enjoyment of fundamental constitutional rights, such as rights with respect to speech, assembly, association, petitioning, voting, and due process of law.”

While the rule is effective on June 24, 2024, compliance dates are delayed to make it feasible for public entities to comply with the rule:

• A public entity, other than a special district government, with a total population of 50,000 or more shall begin complying with this rule April 24, 2026.
• A public entity with a total population of less than 50,000 or any public entity that is a special district government shall begin complying with this rule April 26, 2027.

At present, these rules do not apply to private-sector businesses.  But they will apply to private companies doing business for public entities.  Moreover, the new standards provide a roadmap for accessibility.  Given the amount of lawsuits filed in California courts on accessibility issues, it is always recommended that business owners be proactive, and ensure that their company’s website, app-based platforms, and if applicable, brick-and-mortar spaces, are ADA compliant and accessible by individuals with disabilities.

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