As many of you know, we have been keeping up on the growing litigation involving the accessibility of websites under the Americans with Disabilities Act (ADA) in our past posts: “Florida federal judge holds that supermarket chain’s website must be accessible to disabled” and “ADA public accommodations law reform on its way?” Many stakeholders have urged that websites of businesses that operate public accommodations should be accessible to the WCAG 2.0 AA standard. WCAG is the Web Content Accessibility Guidelines developed by the World Wide Web Consortium (W3C), the private organization focused on improving the Internet experience and who develops recommendations for website accessibility. There are levels of “success criteria:” A, AA and AAA—in increasing levels of accessibility. The government recently issued regulations requiring federal government websites to be accessible to the WCAG 2.0 AA standard and often insists on this same level of compliance when it settles enforcement actions against private businesses.

On June 5, 2018, W3C issued WCAG 2.1, which updates the prior guidelines. WCAG 2.1 does not change any of the “success criteria” for websites imposed by WCAG 2.0. It does add 17 new criteria—5 at level A, 7 at level AA and 5 at level AAA.

For those website operators who have already complied with WCAG 2.0 AA, it remains to be seen what should be done. Technically, neither WCAG 2.0 nor 2.1 are government-required for private businesses (by formal regulations issued by the Department of Justice). They are merely “recommendations” by an industry group. Yet the DOJ and many plaintiffs’ counsel insist on compliance with them in order to fully comply with the statutory obligations in the ADA.

What is a business to do?

Each business should evaluate its status as a public accommodation; if applicable, determine its current level of compliance; and if necessary, develop a road map for accessibility improvements that now should include the WCAG 2.1 requirements, which will inevitably find their way into private lawsuits and DOJ enforcement activity. If compliance isn’t confusing enough, WCAG 2.2 is coming, and WCAG 3.0 reportedly is coming in 2021.