Organizations that qualify as public accommodations under the Americans With Disabilities Act (ADA), along with state and local governments, may soon be required to ensure that their websites are accessible to individuals with disabilities. The ADA provides for standards for accessibility of physical facilities at places of public accommodation. However, when the act was passed in 1990, the Internet as we know it today did not yet exist. Accordingly, the question whether the accessibility requirements apply to websites has been a subject of debate.

The Department of Justice has taken the position that website access is indeed covered under the ADA's accessibility requirements and that it intends to issue regulations establishing website accessibility standards. The department is taking public comments through January 24, 2011, in advance of issuing proposed rules followed by adoption of regulations on this topic.

Some anticipated website requirements include:

  • Text-only alternatives for any visual material such as pictures and graphics, for users with visual impairments who rely on "screen reader" technologies.
  • Captions for any audio or video content, to allow review by users with hearing impairments.
  • Alternative font sizes and color contrast for the benefit of individuals with color blindness or other visual impairments.
  • Keyboard navigation options for users who have difficulty using a mouse due to motor, vision or cognitive impairments.
  • Form and document formats that are consistent with various adaptive technologies used by individuals with disabilities.

The department has invited public comment on questions including what standards should be adopted, how to effectively address ongoing technological change in any standards that are adopted, time frames for compliance, whether standards should apply to existing web content or only to newly added content, whether small business should receive partial or complete exemptions, and whether new regulations could have unintended adverse consequences such as a reduced use of videos on websites. To help organizations improve their website accessibility and evaluate how the anticipated standards might affect their websites, the Job Accommodation Network (a service provided by the Department of Labor's Office of Disability Employment Policy) suggests several sources that offer free website accessibility evaluation, including www.cynthiasays.com and wave.webaim.org.

The department has already challenged the use of non-accessible technology by places of public accommodation, most notably by pursuing action against several universities that provided materials and information via use of an electronic reading device that did not offer a text-to-speech function for its menu and navigation features. Those universities agreed to discontinue use of any e-reader that was not fully accessible to persons with visual impairments.

Employers who are subject to the ADA's requirements and who use online recruiting and application systems should keep in mind that the ADA's standards on equal employment opportunities for qualified individuals with disabilities already require them to provide reasonable accommodation in the recruiting and hiring process. It is important to review such systems for accessibility and to be prepared to offer alternative approaches as reasonable accommodations for individuals with disabilities, tailored to the specific circumstances. Federal contractors who are required to maintain affirmative action programs should exercise particular diligence to comply with the Office of Federal Contract Compliance Programs (OFCCP) requirement to evaluate and audit any online application process to ensure that it provides equal opportunities to individuals with disabilities. If the application system is not fully accessible, the contractor may offer an optional alternative application method for applicants who cannot use the online process, as long as applicants using different methods of application are treated equally.