Seyfarth synopsis: The federal government has adopted the Web Content Accessibility Guidelines 2.0 Levels A and AA as its accessibility standard for federal agency websites, making it very likely that the Department of Justice will also adopt this standard for public accommodations websites in its forthcoming regulations.

Businesses working on making their websites accessible to individuals with disabilities often ask us what technical standard they should be using since the ADA Title III regulations do not yet specify a standard. We believe the Department of Justice (“DOJ”) will likely adopt the Web Content Accessibility Guidelines 2.0 Levels A and AA (“WCAG 2.0 AA”) as the standard for public accommodations websites for a number of reasons, including the fact that WCAG 2.0 AA is the access standard used in all DOJ settlement agreements and consent decrees about websites and mobile apps.

Yesterday, the U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”) announced a final rule, under the authority of Section 508 of the Rehabilitation Act, requiring the websites and electronic content of federal agencies to conform to WCAG 2.0 AA within one year of the date the rule is published in the Federal Register (most likely in the next few weeks). The federal government’s adoption of WCAG 2.0 AA for its own websites makes it even more likely that the DOJ will adopt the same standard for the websites of public accommodations and state and local governments under Titles II and III of the ADA–someday.

As we have previously reported, the DOJ most recently stated that its proposed rule for public accommodations websites will be published in 2018. However, we have little confidence in that date given the number of delays thus far and the impending administration change. That said, this final rule applicable to federal agency websites should provide businesses with confidence that WCAG 2.0 AA is the standard to use if they are working on making their websites accessible.