DOJ Consent Decree Provides Guidance on Web Accessibility Compliance Under ADA

On March 6, 2014, the Department of Justice (“DOJ”) issued a press release announcing a proposed consent decree against H&R Block to resolve claims that the H&R Block website, mobile applications, and online tax preparation products were not appropriately accessible to the disabled.  DOJ alleged that failing to make these online services accessible to the disabled violated Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 – 12189, and its implementing regulations, 28 C.F.R. Part 36. This consent decree is noteworthy since DOJ has not yet published guidance on web accessibility.  Therefore, the consent decree may provide insight into the content of the forthcoming guidance.  Among the key questions about the upcoming guidance is how it may differ from the W3C Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”).  The consent decree requires H&R Block to adopt accessibility measures conforming to WCAG 2.0.  Therefore, it appears that WCAG 2.0 remains the best framework to rely upon in the absence of substantive federal guidance.

There are several additional points of note in the consent decree.

First, the case was initiated by an advocacy groups for the disabled, the National Federation of the Blind (“NFB”) with DOJ intervening on December 11, 2013.  There is still no indication that DOJ is pursuing an aggressive enforcement agenda focused on web accessibility.  Previous DOJ web accessibility enforcement actions have been ancillary to traditional physical accessibility cases, such as the settlement with QuikTrip Corporation.  Private litigation initiated by advocacy groups appears to remain the primary risk for website publishers in the immediate future.  However, it is foreseeable that DOJ will intervene in such private litigation again.

Second, the consent decree specifically notes that H&R Block “owns and operates retail locations that are places of public accommodation” and that the “online services link customers to these retail locations.”  Similar to the settlement with QuikTrip, this language is consistent with the assertion that enforcement of the ADA to websites may require a nexus between the website and a physical place of public accommodation.  It remains uncertain whether the DOJ will participate in ADA litigation involving websites that have no affiliation with “brick and mortar” facilities.

Third, the consent decree imposes notable administrative requirements in addition to the technical provisions of WCAG 2.0.  Examples of these requirements include the following.

• Appointment of a Web Accessibility Coordinator reporting directly to the Chief Information Officer of H&R Block.
• Establishment of a Web Accessibility Committee to assist the Web Accessibility Coordinator.
• Preparation of written reports by the Web Accessibility Coordinator on at least a quarterly basis, detailing the status of the web accessibility program.
• Adoption of a Web Accessibility Policy consistent with a model policy that had been approved by the NFB.
• Maintain a disabled-accessible mechanism for website visitors to provide comments, recommendations, and questions regarding accessibility of the website.
• Implement procedures to provide customer assistance to disabled customers (including specifying that at least 5% of available customer service personnel have training sufficient to respond to requests by disabled website visitors).
• Accessibility training for all employees and contractors responsible for the creation and deployment of website content.
• Required testing of all web content for accessibility before it is put into production.
• Retention of a third party web accessibility consultant, subject to the approval of the parties to the litigation, who shall conduct annual evaluations of the accessibility program.

These somewhat aggressive requirements may reflect the fact that the case was initiated by a disabled advocacy organization.  It appears that the NFB had significant input into developing the terms of the consent decree.  Nevertheless, owners and operators of websites should note that similar commitments may be necessary to resolve web accessibility litigation in the future.