Title III of the Americans with Disabilities Act and Website Compliance

Title III of the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination on the basis of disability in places of public accommodation (42 U.S.C. § 12182(a)). Title III does not directly address whether places of public accommodation include websites, mobile applications, or other emerging web-based technologies. However, the Department of Justice (DOJ), the primary federal government agency responsible for enforcing the ADA, has taken the position that Title III applies to all public-facing websites used by companies that otherwise qualify as places of public accommodation. The courts are also split on related issues.

This Practice Note:

• Provides a general overview of the ADA.
• Describes how Title III applies to a public place of accommodation’s website.
• Describes the DOJ’s current stance on ADA website compliance.
• Summarizes the circuit split in Title III litigation regarding website accessibility.
• Provides a general overview of the Web Content Accessibility Guidelines (WCAG) 2.0 and 2.1, which were prepared by the World Wide Web Consortium (W3C), a consortium of private and non-profit companies that works to provide international standards for web content accessibility. The WCAG 2.0 has been relied on for determining whether a website violates Title III and as the requirements for Title III compliance by the courts (see Gil v. Winn-Dixie: Eleventh Circuit Vacates Opinion Due to Mootness, below) and the DOJ, which has relied more specifically on WCAG 2.0 AA conformance (see DOJ Settlements Require Private Websites to Conform to WCAG 2.0 AA, below).

The ADA

The ADA was signed into law to protect individuals with disabilities (42 U.S.C. §§ 12101 to 12213). It was amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) (Pub. L. No. 110-325).

The ADA defines disability, as it applies to an individual, as:

• A physical or mental impairment that substantially limits one or more major life activity of an individual.
• A record of a physical or mental impairment.
• Being regarded as having a physical or mental impairment, further defined as:
  • someone who establishes that he or she was subjected to an action prohibited by the ADA because of any actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity; and
  • an impairment that is determined not to be minor or transitory (with an expected duration of six months or less).

(42 U.S.C. § 12102(1), (3).)

Major life activities include, but are not limited to:

• Caring for oneself.
• Performing manual tasks.
• Seeing.
• Hearing.
• Eating.
• Sleeping.
• Walking.
• Standing.
• Lifting.
• Bending.
• Speaking.
• Breathing.
• Learning.
• Reading.
• Concentrating.
• Thinking.
• Communicating.
• Working.
•  Major bodily functions, including but not limited to:
  • functions of the immune system;
  • normal cell growth;
  • digestive;
  • bowel;
  • bladder;
  • neurological;
  • brain;
  • respiratory;
  • circulatory;
  • endocrine; and
  • reproductive functions.

(42 U.S.C. § 12102(2).)

The determination of whether an impairment substantially limits a major life activity is made regardless of the ameliorative effects of mitigating measures, such as:

• Medication.
• Medical supplies, equipment, appliances, low-vision devices (not including eyeglasses or contact lenses), prosthetics, hearing aids, cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment and supplies.
• Use of assistive technology.
• Reasonable accommodations or auxiliary aids or services.
• Learned behavioral or adaptive neurological modifications.

(42 U.S.C. § 12102(4)(E)(i)(I) to (IV).)

The definition of disability is construed in favor of broad coverage of individuals. It applies even if only one major life activity is impaired and even if that impairment is episodic or in remission but otherwise meets the statutory definition when it is active (42 U.S.C. § 12102(4)(A), (C), (D)).

Title III

Title III of the ADA prohibits discrimination based on disability in places of public accommodation. A place of public accommodation is defined as a privately operated facility whose operations:

• Affect commerce.
• Fall within at least one of the following 12 categories:
  • places of lodging;
  • establishments serving food or drink;
  • places of public gathering;
  • sales or rental establishments;
  • service establishments;
  • public transportation terminals, depots, or stations;
  • places of public display or collection;
  • places of recreation;
  • places of education;
  • social service center establishments; or
  • places of exercise or recreation.

(42 U.S.C. § 12181(7); 28 C.F.R. § 36.104.)

Exemptions

Private clubs and establishments and religious organizations and entities controlled by religious organizations, including places of worship, are explicitly exempted from being places of public accommodation (42 U.S.C. §§ 2000a(e) and 12187). However, the private and religious exemptions may not apply if facilities are also leased to hold public events (Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 15 A.D. Cas. (BNA) 1336 (9th Cir. 2004), Defiore v. City Rescue Mission of New Castle, 995 F. Supp. 2d 413 (W.D. Pa. 2013), and Lobel v. Woodland Golf Club of Auburndale, 260 F. Supp. 3d 127, 147 (D. Mass. 2017), appeal dismissed sub nom. Lobel v. Woodland Golf Club of Auburndale, No. 17-1657, 2017 WL 6762405 (1st Cir. Dec. 19, 2017)).

Remedies

Remedies for injured parties are limited under Title III of the ADA. The remedies available are the same as those under Title II of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000a to 2000a-6). The only remedies available in a Title III action between private parties are injunctive relief and attorney’s fees. The Attorney General, however, also has the option to join the suit and can request that the court grant additional monetary relief to the plaintiff (42 U.S.C. § 12188).

Application of Title III Discrimination to Website Accessibility

When the ADA was enacted in 1990, far fewer people used the internet and discrimination based on disability mostly occurred in person. Title III provides the standards required for businesses’ physical locations to properly accommodate disabled individuals. However, Title III does not provide any regulatory guidance for the internet, websites, or mobile applications. It also does not expressly limit its coverage to brick-and mortar locations or exclude online locations. As the internet has grown in importance, many have lobbied for formal online accessibility standards. While the DOJ and the courts have provided some guidance on the issue, Congress has yet to act (however, the Online Accessibility Act was introduced in the US House of Representatives on On October 2, 2020).

The current legal landscape provides places of public accommodation with a framework on how to apply Title III’s requirements to their websites, mobile applications, and other digital content. But it falls short of providing a concrete path to compliance in exchange for flexibility. Congress’s failure to act on the issue and the DOJ’s limited guidance has resulted in a circuit split among the courts.

Companies must therefore consider both DOJ guidance and court cases for guidance regarding ADA compliance for website accessibility. For more information about:

• DOJ guidance, see DOJ’s Current Stance on ADA Website Accessibility, below.
• Court cases, see Circuit Court Split, below.

DOJ’s Current Stance on ADA Website Accessibility

The DOJ has spearheaded, and then abandoned, several efforts (including formal rulemaking) over the years to come up with a uniform position regarding ADA website accessibility. However, the DOJ’s conduct overwhelmingly has supported, and continues to support, that websites must be accessible to disabled persons. The DOJ generally supports the idea that a company can make their website accessible by any means, which includes but is not limited to, compliance with WCAG 2.0, Level AA requirements.

This Note summarizes the key DOJ sources:

• 2003 Voluntary Action Plan (see DOJ Voluntary Action Plan, below).
• 2010 Advance Notice of Proposed Rulemaking (ANPRM), titled Nondiscrimination on the Basis of Disability, which was withdrawn in 2017 (see DOJ 2010 Proposed Rulemaking (Withdrawn), below).
• 2014 settlements requiring private websites to conform to WCAG 2.0 AA (see DOJ Settlements Require Private Websites to Conform to WCAG 2.0 AA, below).
• 2017 rule regarding accessibility of federal websites (see DOJ Rule Regarding Federal Online Content, below).
• 2018 letter from Assistant Attorney General Stephen E. Boyd regarding flexibility in website accessibility compliance (see DOJ Letter Regarding ADA Website Compliance Flexibility, below).

DOJ Voluntary Action Plan

In 2003, the DOJ first recognized the need to make websites accessible to disabled persons with the release of its Voluntary Action Plan for government agencies and private entities. The Voluntary Action Plan, which references the ADA, lists tips to help make websites more accessible, including:

• Using tags, long descriptions, and captions on web pages.
• Making sure that photos and graphics are accompanied by alt tags or descriptions.
• Ensuring that online forms and tables are accessible to the sight and hearing impaired.
• Always posting documents in HTML or another text-based format.
• Periodically enlisting disability groups to test web pages for ease of use.

Additional recommendations followed in 2007.

Companies should as a best practice ensure that their websites comply with these guidelines (and other criteria generally set out in this Note).

DOJ 2010 Proposed Rulemaking (Withdrawn)

In 2010 the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM), titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations (75 Fed. Reg. 43460). The notice stated that the DOJ was considering revising the ADA to establish rules that addressed accessibility for individuals with disabilities on public websites and requested comments from stakeholders. Formal guidelines were anticipated to be released by 2015.

However, on December 26th, 2017, the DOJ officially withdrew the ANPRM on ADA website accessibility (82 Fed. Reg. 60932).

The DOJ also reiterated that it had “long considered” websites to be covered by Title III. Since then, there has been no indication that official rules or guidelines on how the ADA applies to private websites will be released.

DOJ Settlements Require Private Websites to Conform to WCAG 2.0 AA

In 2014, the DOJ entered into a settlement agreement with Peapod LLC and a consent decree with H&R Block to remedy Title III violations related to the companies’ websites and mobile applications (DOJ: Justice Department Enters into a Settlement Agreement with Peapod to Ensure that Peapod Grocery Delivery Website is Accessible to Individuals with Disabilities and DOJ: Justice Department Enters Consent Decree with National Tax Preparer H&R Block Requiring Accessibility of Websites and Mobile Apps Under Americans with Disabilities Act). Under both agreements, the companies agreed to bring their websites in compliance, at a minimum, with WCAG 2.0 AA (except for third-party content, in Peapod’s settlement).

DOJ Rule Regarding Federal Online Content

On January 9, 2017, the federal government issued a rule requiring all federal websites and digital content to conform to the W3C’s WCAG 2.0, Level AA (WCAG 2.0 AA), within twelve months of the ruling (82 Fed. Reg. 5790). The DOJ and the courts have generally accepted the WCAG as the voluntary standard for ensuring website accessibility (see WCAG Compliance, below). However, the DOJ later announced that places of public accommodation (privately operated websites; federally operated websites still must conform to WCAG 2.0 AA) have flexibility in complying with Title III instead of formally adopting WCAG as the standard.

DOJ Letter Regarding ADA Website Compliance Flexibility

On September 25, 2018, Assistant Attorney General Stephen E. Boyd, sent a letter in response to a query by a bi-partisan group of House Representatives. In the letter, Boyd confirmed the DOJ’s position that:

• The ADA applies to websites that qualify as places of public accommodation.
• The absence of specific regulation does not serve as a basis for noncompliance with a statute’s requirements.
• Until formal regulation that outlines the specific technical requirements for websites is adopted, places of public accommodation have flexibility in how they choose to comply with the ADA’s general requirements of nondiscrimination and effective communication.

Unless and until a formal policy becomes law, courts and regulators will likely continue to cite the Web Content Accessibility Guidelines (WCAG) as the standard for ADA compliance. Boyd’s letter does not specifically mention the WCAG but does state that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” Boyd’s statements may affect how the courts rule on website accessibility, as court decisions have relied heavily on the WCAG standards (see Gil v. Winn-Dixie: Eleventh Circuit Vacates Opinion Due to Mootness, below).

Title III ADA Litigation

Companies must also consider case law when analyzing ADA website accessibility compliance. Without explicit DOJ statutory guidance, there has been:

• An increase in litigation alleging companies have violated Title III of the ADA by not making their websites or mobile applications accessible to persons with disabilities.
• A circuit court split on several related issues, including whether a website qualifies as a place of public accommodation even though:
  • the company only operates online; and
  • does not have a traditional brick and mortar location (see Access Now, Inc. v. Blue Apron, LLC, 2017 WL 5186354 (D. N.H. Nov. 8, 2017)).

Circuit Court Split

The ADA does not specifically identify websites as places of public accommodation, and the courts are split on whether the law limits the definition solely to physical spaces. The court split can generally be categorized as follows:

• Courts have found that a website can be a place of public accommodation independent of any connection to a physical space, including:
  • the First Circuit (Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994) and Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012));
  • the Fourth Circuit (Mejico v. Alba Web Designs, LLC, 515 F. Supp. 3d 424, 434 (W.D. Va. 2021)).
  • the Seventh Circuit (Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed’n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001) and Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 558 (7th Cir. 1999)).
• Courts have concluded that places of public accommodation must be physical places, but that goods and services (including websites) provided by a public accommodation may fall within the ADA if they have a sufficient nexus to a physical place, including:
  • the Ninth Circuit (Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) and Earll v. eBay, Inc., 599 F. App’x 695, 696 (9th Cir. 2015)); Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir.), cert. denied, 140 S. Ct. 122, 205 L. Ed. 2d 41 (2019));
  • the Third Circuit (Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998) and Peoples v. Discover Fin. Servs., Inc., 387 F. App’x 179, 183 (3d Cir. 2010)); and
  • the Sixth Circuit (Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997)).
• Inconsistent Second Circuit district court opinions have held both that:
  • websites themselves are places of public accommodation (Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 576 (D. Vt. 2015) and Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017); and
  • the ADA excludes websites of businesses with no public-facing, physical retail operations from the definition of public accommodation (Winegard v. Newsday LLC, 2021 WL 3617522 (E.D.N.Y. 2021)).
• The Eleventh Circuit subsequently vacated an opinion that had held that websites were not places of public accommodation under the ADA. The Eleventh Circuit vacated the opinion because the parties’ dispute was moot due to an injunction expiring prior to the court’s original decision (Gil v. Winn-Dixie Stores, Inc., (2021 WL 6129128 (11th Cir. Dec. 28, 2021)). Gil v. Winn-Dixie was a landmark opinion and vacating it returned the Eleventh Circuit to a state of uncertainty regarding the ADA’s application to websites/physical locations.

Gil v. Winn-Dixie: Eleventh Circuit Vacates Opinion Due to Mootness

On December 28, 2021, the Eleventh Circuit vacated its own opinion in Gil v. Winn-Dixie Stores, Inc., a website accessibility discrimination case that held websites were not places of public accommodation under the ADA. The case was vacated due to mootness after the court determined that an injunction expired prior to its original decision (2021 WL 6129128 (11th Cir. Dec. 28, 2021)).

The Eleventh Circuit’s Original Opinion

The Eleventh Circuit’s original opinion in Gil v. Winn-Dixie overturned a landmark Florida district court opinion, and the first-ever website accessibility trial, that found that a regional supermarket’s website was a place of public accommodation because it was heavily integrated with its physical stores.

The Eleventh Circuit reversed the lower court decision and found that:

• Winn-Dixie, a grocery store chain, did not violate the ADA by having an inaccessible website because websites are not places of public accommodation under the ADA.
• The plaintiff failed to prove that the inaccessibility of Winn-Dixie’s limited use website functioned as an intangible barrier to a visually impaired individual accessing goods, services, privileges, advantages, or accommodations of Winn-Dixie’s physical stores.

(Gil v. Winn-Dixie Stores, Inc., 2021 WL 1289906 (11th Cir. Apr. 7, 2021).)

The Eleventh Circuit Vacates Its Original Opinion

Gil, the plaintiff, petitioned for a rehearing en banc, with one of several arguments being that the case was moot because the district court’s original injunction had expired in 2020, prior to the Eleventh Circuit’s first decision, in April 2021. Instead of granting the petition for rehearing en banc, the Eleventh Circuit vacated its original opinion, holding that the parties’ dispute became moot when the injunction issued by the district court expired. The Eleventh Circuit therefore vacated its original opinion and judgment and remanded the case for the district court to enter an order dismissing it as moot.

In vacating its original opinion the court returned the Eleventh Circuit to a state of uncertainty regarding whether websites qualify as places of public accommodation. Given the Eleventh Circuit’s original Gil decision, it appears the court is likely to exclude websites from being covered under the ADA as public accommodations, but this outcome is far from certain.

Surpeme Court Declines to Review Robles Decision

On October 7, 2019, the Supreme Court of the United States declined to review the Ninth Circuit’s decision in Robles v. Domino’s Pizza LLC, which held that:

• The ADA applies to Domino’s website and mobile application.
• Domino’s received fair notice that its website and mobile application were required to comply with the ADA.
• Due process does not require the DOJ to issue specific guidelines for ADA compliance.
• The district court may order compliance with WCAG 2.0 as an equitable remedy if, after discovery, its website and application fail to satisfy the ADA (the case was remanded to the district court) (Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir.), cert. denied, 140 S. Ct. 122 (2019)).

Business owners watched the case closely in hopes that the Supreme Court would overturn the Ninth Circuit’s decision. Instead, the Supreme Court, in denying cert., left the door open for plaintiffs to continue to sue alleging incompatibility with screen-reading software commonly used by blind and mobility-impaired users, along with other violations of the ADA’s public accommodation requirements.

Robles District Court Finds Domino’s Violated the ADA After Supreme Court Declines Review

On June 23, 2021, in response to the Supreme Court declining to review the Ninth Circuit’s decision, a California federal district court granted summary judgment to the plaintiff and found that Domino’s violated the ADA by having an inaccessible website (Robles v. Domino’s Pizza, LLC, No. 16-6599 (C.D. Cal. June 23, 2021)). The district court ordered Domino’s to bring its website into compliance with WCAG 2.0 but allowed the case to continue regarding Domino’s mobile app. The order also:

• Rejected Domino’s argument that its website and app were not covered by the ADA because it’s stores were franchises and the company did not own its physical stores.
• Did not specify the level of WCAG compliance required or set a date as to when compliance must be attained.
• Stated that allowing customers to place an order via a phone line did not provide equivalent access when the customer was placed on hold for over 45 minutes on two occasions.
• Required Domino’s to pay $4,000 in damages, as well as the plaintiff’s attorney’s fees. The plaintiff had sought $4,000 for each visit he made to the website but the court instead found that there was one overarching violation.

The district court allowed the case to continue regarding Domino’s app because of a disputed issue of fact involving its current accessibility. The app was inaccessible in 2016 but in 2020 a defense expert witness was able to order a pizza using the app and screen reading software.

WCAG Compliance

The rise of litigation and uncertainty surrounding the applicability of the ADA to websites should prompt companies to take preemptive steps to protect against liability by adopting practices that ensure their websites are accessible to disabled persons. The DOJ allows for flexibility in how places of public accommodation comply with the ADA’s requirements of nondiscrimination. The courts have relied on WCAG 2.0 and the DOJ has relied more specifically on WCAG 2.0, AA Conformance for determining whether a website violates Title III and as the requirements for a discriminating website to become Title III compliant.

WCAG 2.0 outlines four principles of accessible design. Websites must be:

• Perceivable, which means users must be able to perceive the information being presented (it can’t be invisible to all of their senses).
• Operable, which means that users must be able to operate the interface (the interface cannot require interaction that a user cannot perform).
• Understandable, which means that users must be able to understand the information as well as the operation of the user interface (the content or operation cannot be beyond their understanding).
• Robust, which means that users must be able to access the content as technologies advance (as technologies and user agents evolve, the content should remain accessible).

(See WCAG 2.0.)

Conformance

WC3 specifies five requirements that content must meet to be classified as conforming to the WCAG 2.0:

• At least one of the following levels of conformance must be met in full:
  • Level A (WCAG 2.0 A), the minimum level of conformance;
  • Level AA (WCAG 2.0 AA), the level generally relied on by the DOJ and the courts;
  • Level AAA (WCAG 2.0 AAA), the maximum level of conformance; or
  • a conforming alternative version of a non-conforming page that satisfies a least one of the above levels in full (for more information, see WCAG 2.0: Appendix A, Conforming Alternate Version).
• Webpages must fully achieve conformance, and cannot achieve conformance if part of a webpage is excluded.
• If a webpage presents a process, or sequence of steps that must be completed to accomplish an activity, every step must at least conform to the lowest achieved level.
• All the information presented by, and functionality of, web content technologies (such as HTML, CSS, and JavaScript) must be accessibility supported. Accessibility supported web content technologies:
  • support user-assistive technology; and
  • have accessibility supported user agents (such as browsers, assistive technologies) that are available to users (for more information, see WC3’s Technical Definition of Accessibility Support).
• Technologies that are not accessibility supported can only be used if:
  • all the same information is also available using technologies that are accessibility supported; and
  • non-accessibility-supported material does not block users’ ability to access the rest of the page.

For more information on the five requirements for WCAG 2.0 conformance, see W3C’s Understanding Conformance Requirements.

Success Criteria

A website must satisfy what the WC3 calls its Success Criteria to reach each level of WCAG 2.0 conformance. Each level of conformance builds off the lesser level(s). For example, to reach Level AAA conformance, a webpage must also satisfy all of the Success Criteria assigned to Level A and Level AA (for more information, see W3C’s Understanding Levels of Conformance).

The Success Criteria were designed to be used as objective testable criteria that can determine whether accessibility efforts function as expected.

Testing

WCAG’s Success Criteria are designed to allow online content to be tested to determine whether it satisfies the requisite criteria for a conformance level. Testing should involve a combination of automated testing and human evaluation. Several companies that can be found online offer automated tools that assess websites for WCAG compliance. Human testers should understand how people with different types of disabilities use the web.

WC3 also recommends usability testing, in addition to the required functional testing. Usability testing tests content to determine if it can be used for its intended purpose. This testing technique aims to determine whether content may be usable by people with a wide variety of disabilities. WC3 recommends that test groups include users with disabilities when performing usability testing.

Level AA Conformance

Both the courts and DOJ have relied on WCAG 2.0 for determining whether a website violates Title III. Companies in pursuit of WCAG 2.0 AA conformance should:

• First follow WCAG 2.0 requirements for Level A conformance, by:
  • providing text alternatives for all non-text content. Text alternatives are translated by software that allows disabled persons to navigate the webpage. Controls and input fields should have a name describing their purpose;
  • providing equivalent information for time-based media. Prerecorded video and audio content should be provided as alternatives to video-only and audio-only content. An audio track could be provided to represent video-only content. Captions should be provided for all prerecorded audio content;
  • creating content that may be presented in multiple ways without losing information. The website’s information, structure, and logic should be presented in a way that is accessible to a variety of users, including those that use assistive technologies;
  • not using color as the only means of conveying visual information, distinguishing visual components, indicating actions, or prompting a response;
  • allowing for independent control (such as pausing or stopping) of audio on webpages where audio plays automatically for more than three seconds;
  • allowing users to fully operate the website through a keyboard interface;
  • providing users with the option to turn off, adjust, or extend any time limit set by content, except when that time limit is part of a real-time event and there is no alternative for the time limit;
  • providing users with the option to pause, stop, or hide any unessential moving, blinking, or scrolling information that starts automatically;
  • avoiding designing content in a way that is known to cause seizures;
  • providing options to bypass repeating blocks of content on multiple pages;
  • providing web pages with titles that describe the topic or purpose of the page;
  • making sure that the website navigation is done sequentially and in a way that allows for easy movement between webpages;
  • ensuring that the purpose of each link can be determined by the link text alone, unless the purpose is ambiguous to all users;
  • designing the website so that the language of webpages can be determined by assistive technology;
  • ensuring that website functionality and content is not disrupted when users input information and changes are applied to any setting;
  • providing text information when there is an error that specifies the item in error and the error itself; and
  • providing labels, guidance, and instructions on where user input is required.
• In addition to following WCAG 2.0 requirements for Level A conformance, a company should follow WCAG 2.0 requirements for Level AA conformance, by:
  • providing captions for all live audio content;
  • providing audio description for all prerecorded video content;
  • ensuring text content and images of text have a contract ratio of 4.5:1. Large-scale text and images of large-scale text should instead have a contract ratio of 3:1;
  • providing users with the ability to resize text up to 200% percent without using assistive technology or losing content or functionality;
  • using text to convey information instead of images where possible;
  • providing multiple ways to locate webpages;
  • using headings and labels to describe topics and purposes of webpage components;
  • making sure the keyboard focus indicator is visible through all interfaces;
  • ensuring that webpage navigation and menus which appear on multiple web pages occur in the same order each time they appear;
  • consistently identifying components with the same functionality;
  • providing users with correctional suggestions for known input errors; and
  • ensuring that all users can check and confirm sensitive, inputted legal and financial data before submitting the information.

WCAG 2.1

On June 5, 2018, the W3C published WCAG 2.1, which updates some of the existing WCAG 2.0 conformance requirements, and is intended to provide a better overall web experience. The new criteria mainly relate to:

• Mobile devices.
• Disabilities that affect vision, including:
  • colorblindness;
  • low vision; and
  • criteria that address text spacing and non-text color contrast.
• Disabilities that affect cognitive function.

2.1 builds on 2.0, retaining its requirements, structure, and framework while adding new Success Criteria companies must satisfy to establish conformance. WCAG 2.1 provides the following information on how it affects WCAG 2.0:

• WCAG 2.1 is an extension of WCAG 2.0, which is meant to add to, instead of superseding, WCAG 2.0.
• Content that conforms to WCAG 2.1 also conforms to WCAG 2.0.
• For policies requiring conformance to WCAG 2.0, WCAG 2.1 provides an alternative means of conformance.
• WCAG 2.0 remains a W3C recommendation, but the W3C advises the use of WCAG 2.1 to maximize future applicability of accessibility efforts.

According to W3C’s guidance, companies in compliance with WCAG 2.0, Level AA Conformance should maintain their current standards while working to at least incorporate WCAG 2.1’s 12 (out of 17, which also includes the new Level AAA Success Criteria) additional Level A and Level AA Success Criteria (available at W3C Web Accessibility Initiative: How to Meet WCAG 2 (Quick Reference)).

Some Courts and regulators will continue to cite WCAG 2.0, but WCAG 2.1 is gradually becoming the standard courts cite as the ADA accessibility standard companies should implement for websites, mobile applications, and digital content compliance.

WCAG 2.2

In August 2020, the W3C published a working draft of WCAG 2.2. WCAG 2.2 builds off of 2.0 and 2.1 and includes guidelines for making content more accessible to a wider range of people with disabilities on desktops, laptops, tablets, and mobile devices (see also What’s New in WCAG 2.2 Working Draft). Content that conforms to WCAG 2.2 also conforms to 2.0 and 2.1 and, similar to WCAG 2.1, version 2.2 provides an alternate means of conformance. The W3C states that WCAG 2.0 and 2.1 remain W3C recommendations but version 2.2 should be used to maximize future applicability of accessibility efforts. The final version of WCAG 2.2 is expected to be released in 2022.