The legal debate concerning website and app accessibility for those who are visually and hearing impaired has been ongoing for at least a decade. Accessibility is accomplished with software coding embedded in the base structure of a website/app providing an audio description of visual content and a visual explanation of audio content. The software and tech support are now widespread and common.

Legally, the general rule now is that, if a website or app is used to “drive traffic” to a physical location, then the website or app must be accessible to the visual/hearing impaired. This is a compromise related to the federal Americans with Disabilities Act (“ADA”) which prohibits discrimination in public accommodations. If a store or restaurant, for example, invites the public to enter and enjoy their premises, then the premises must be accessible to those, for example, who cannot walk.

The legal debate has centered around the fact that the ADA speaks in terms of physical locations. Of course, websites and apps are not physical locations, existing as they do on the internet and on wireless connectivity. So, the legal question was whether the ADA applies to websites. As noted above, the answer is “no” unless the website (or app) has a direct and significant connection to a physical location. Driving consumer traffic to a physical location is an example.

These legal rules have now applied to private businesses for a decade or more in some locations. Now, the federal Department of Justice (“DOJ”) has passed a Final Rule applying the web accessibility legal rules to State and county governments. See the fact sheet here. By mid-2026 (or, in some cases, by early-2027), State and county websites and apps must be web-accessible.

The DOJ’s Final Rule fits squarely within the legal rules described above. State and county governments provide a number of important services which are generally located at various physical places in the community. Further, and maybe most importantly, as governmental entities, these physical locations are places where people can — and do — exercise various constitutionally protected rights like those of speech, assembly, and petitioning. Voting is another essential and important task that is associated with physical locations. Thus, under the legal principles set forth above, it is reasonable for the DOJ to require web and app accessibility for State and county governments. The web and app content is definitely used to direct residents to physical locations where important activity occurs.

Another legally interesting aspect of the new DOJ Final Rule is that it mandates use of certain privately-created and maintained technical standards. These are called the Web Content Accessibility Guidelines (WCAG). Moreover, the DOJ Final Rule requires use of WCAG Version 2.1, Level AA. In the past, there have been legal debates about whether such privately-created standards are appropriate for use in ADA litigation. The courts have generally rebuffed such arguments. Likely, the new DOJ Final Rule solidifies the WCAG as the proper standard.

The DOJ’s Final Rule: Technical Requirements and Compliance Deadlines

The Department of Justice’s Final Rule under Title II of the Americans with Disabilities Act, published in April 2024 at 28 C.F.R. Part 35, establishes a binding technical standard for web and mobile application accessibility for state and local government entities. The rule requires conformance with WCAG 2.1 Level AA standards — not Level A (the minimum) and not WCAG 2.2 (the current version). The DOJ chose WCAG 2.1 AA as a well-established, widely understood standard with a mature ecosystem of compliance tools and auditing methodologies.

Compliance deadlines are tiered by the size of the governmental entity. Public entities serving populations of 50,000 or more must comply within two years of the rule’s publication date (by April 2026). Smaller public entities serving populations under 50,000 must comply within three years (by April 2027). There are limited exemptions for content that is technically infeasible to remediate, archived content not updated after the effective date, and third-party content not controlled by the government entity.

WCAG 2.1 Level AA: What It Actually Requires

WCAG 2.1 Level AA conformance requires that websites and apps satisfy a defined set of success criteria organized around four principles: Perceivable, Operable, Understandable, and Robust (POUR). Key Level AA requirements include: providing text alternatives for all non-text content (Success Criterion 1.1.1); providing captions for all pre-recorded audio and video content (1.2.2 and 1.2.4); ensuring content can be presented without loss of information when zoomed to 200% (1.4.4); maintaining a minimum text-to-background contrast ratio of 4.5:1 (1.4.3); making all functionality available via keyboard without requiring a mouse (2.1.1); and ensuring no content causes seizures by flashing more than three times per second (2.3.1).

For private businesses watching these developments, the DOJ rule for government entities reinforces the WCAG 2.1 AA standard as the applicable benchmark in private sector ADA accessibility litigation as well. Courts adjudicating Title III ADA claims have increasingly adopted WCAG 2.1 AA as the operative standard, and businesses that have not undergone a WCAG 2.1 AA audit are exposed to both litigation and regulatory risk.

Private Business Obligations: Title III and Emerging Litigation Trends

While the new DOJ rule applies specifically to government entities, Title III of the ADA covers private businesses operating “places of public accommodation” — a term courts have applied to websites and apps that have a sufficient nexus to a physical location. The Eleventh Circuit, in Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021), held that a website must have a sufficient nexus to a physical place of public accommodation for Title III to apply. The Ninth Circuit has taken a broader view. This circuit split means that the applicable rule depends on where your business is located and where litigation is filed.

Web accessibility litigation has increased dramatically over the past decade. According to published ADA lawsuit tracking data, federal district courts receive thousands of web accessibility complaints annually, with the highest concentrations in New York and California. Serial litigants file cases against businesses of all sizes, including small retailers, restaurants, and professional service firms. A proactive WCAG audit and remediation program is far less expensive than defending and settling even a single ADA web accessibility lawsuit.

Practical Steps for Business Compliance

Businesses seeking to reduce ADA web accessibility exposure should take four concrete steps. First, commission an independent WCAG 2.1 AA audit of their primary website and any customer-facing apps — do not rely on automated scanning tools alone, as they catch only 30-40% of accessibility barriers. Second, remediate identified barriers in order of severity and user-impact. Third, add an accessibility statement to the website acknowledging the WCAG standard the business is working toward and providing a contact mechanism for users who encounter barriers. Fourth, establish an ongoing accessibility maintenance protocol, since website updates and new content can inadvertently introduce new accessibility barriers. Revision Legal works with web accessibility consultants and can assist businesses with the legal dimensions of a compliance program, including accessibility statements, demand letter responses, and litigation defense.

Contact the Web Accessibility Attorneys at Revision Legal

For more information, contact the experienced Web Accessibility Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.