This article has been updated since it was first published on October 10, 2021. The most recent update was added on August 8, 2022. Read the updates for this article.
During the previous United States presidential administration some very committed disability rights lawyers hunkered down in the Department of Justice (DOJ). They did what they could to protect the Americans with Disabilities Act during that challenging time. But there were very few proactive developments from the federal government in the digital accessibility space.
Today things are different! Two recent developments show that the Disability Rights Section of the DOJ and US Attorneys Offices are once again champions of disability rights generally and digital accessibility specifically, as they had been prior to 2016. It’s wonderful to have the DOJ back in business — a government agency that recognizes digital inclusion as essential to disability inclusion.
DOJ supports digital inclusion in the Quest Diagnostics kiosk accessibility lawsuit
On September 20, 2021, the United States Department of Justice filed a “Statement of Interest” in a federal court case in Los Angeles called Vargas and the American Council of the Blind (ACB) v. Quest Diagnostics. The case is about Quest Diagnostic’s failure to make its kiosks accessible to blind people. The DOJ’s statement supports the plaintiffs’ claim that inaccessible kiosks violate the ADA. (Matthew Handley, of the Washington, D.C. civil rights firm Handley, Farah & Anderson is representing the ACB in this case.)
A government agency can file a Statement of Interest to let a court know the agency’s view on a law it is in charge of implementing. The DOJ interprets and implements the ADA, and told the judge in the case it was filing the statement because:
As the agency charged by Congress with administering theADA, the United States Department of Justice has a vital interest in ensuring that public accommodations’ use of such kiosks does not result in discrimination against individuals with disabilities. DOJ Statement of Interest in Quest kiosk case
The DOJ’s statement explains that companies like Quest (with over 2,000 locations across the United States) must effectively communicate with disabled people. The technical term is that organizations covered by the ADA must provide “auxiliary aids and services.” The Statement told the court that
Particularly significant here, the regulations provide additional examples of auxiliary aids and services that may provide effective communication, including “accessible electronic and information technology.” Id. § 36.303(b). The regulations also clarify that auxiliary aids and services must be provided “in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability” in order to be effective.
- Read the full Department of Justice Statement in ACB’s Quest kiosk case.
- Read more about legal actions to make kiosks accessible to people with disabilities.
New York U.S. Attorney recognizes the importance of accessible online Covid information
On October 5, 2021, the United States Attorneys Office for the Eastern District of New York, part of the federal DOJ, issued a press release with the headline:
United States Reaches Agreements with New York State and Local Government Agencies to Improve Accessibility to Covid-19 Vaccination Websites for People with Vision Impairments
The agreements were reached under Title II of the ADA with five New York State and local government agencies to fix accessibility barriers for people with visual impairments on their COVID-19 vaccination websites. The Acting US Attorney stated what blind people know to be true:
In the midst of the ongoing global pandemic, people with vision impairments must be able to access information about how and where to obtain COVID-19 vaccinations.
The agency thanked the nonprofit accessibility consulting group WebAIM for providing technical support for the project.
More DOJ activity and its digital accessibility history
Want to know more about the Department of Justice’s ADA enforcement work?
- The Biden Disability Rights Section has done important work beyond the digital accessibility activity mentioned here. The “New on ADA.gov” section of the DOJ’s ADA website lists other disability rights work by the Department.
- The agency’s ADA Enforcement page lists efforts since 2006.
- The DOJ’s Accessible Technology ADA Enforcement page does not appear to be kept up, but pulls out the older enforcement cases focused on technology from the bigger list linked above.
- Many of the Legal Update posts on this website include DOJ activity. For example
- The December 2016 Update includes a section titled “Department of Justice Continues to Mandate Digital Accessibility”.
- The Summer 2015 Update includes several cases in the section titled U.S. Department of Justice Continues Support for Digital Accessibility.
Updates to this article
August 8, 2022 Update
On July 29, 2022, The United States Department of Justice and the United States Department of Health and Human Services (HHS) announced important guidance to avoid disability discrimination in Telehealth services. In announcing the new guidance the agencies said:
It is critical to ensure that telehealth care is accessible to all, including patients with disabilities, those with limited English proficiency, and people of all races and national origins.DOJ and HHS press release (linked below)
The new resource is titled Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons.” In addition to spelling out applicable laws and regulations, it includes examples of discrimination in telehealth (such as failure to provide sign language interpreters or failure to design accessible digital platforms.
There are also links to resources from both HHS and DOJ as well as information on how to file complaints with both the Department of Justice and the Department of Health and Human Services.
- Read the press release announcing the Telehealth Guidance
- Read the Agency Guidance on Non-Discrimination in Telehealth
July 10, 2022 Update
This update is not about any digital accessibility advocacy by the US Department of Justice (DOJ). It is about a strong statement by the DOJ on another topic entirely that should have an impact on digital accessibility cases. In a federal case in Colorado against the Douglas County School District, the District argued that if school resource officers (SROs) discriminated against a disabled student, the District could not be liable under the Americans with Disabilities Act (ADA) because the SROs were contractors, not employees.
The DOJ filed a “Statement of Interest of the United States” in early June 2022 to explain to the court how any why the District was wrong. It’s 11 page statement to the court is based on language of the ADA, courts cases, and the clear ADA regulation that
“a public entity may not discriminate in the provision of its services, programs, and activities, whether “directly or through contractual, licensing, or other arrangements.”DOJ Statement of Interest
While the Statement of Interest applies to an ADA title II case brought against a public school district, this same “contractual, licensing, or other arrangement” language is also in the title III regulations applicable to private organizations covered by the ADA.
Much digital work is done by “contractual, licensing, or other arrangement.” The Department’s Statement in the Colorado school case is a reminder that organizations covered by the ADA are responsible for the digital work done by their contractors.It is also a reminder of the need for clear language in contracts, statements of work, and other contracting documents about accessibility.
May 29, 2022 Update
On May 12, 2022, the Department of Justice and another US federal agency issued important guidance about potential disability discrimination (including the lack of accessibility) with artificial intelligence hiring tools. Learn more about this development in the article on this website titled Two US Government Agencies Warn about Hiring Technology that Discriminates against Disabled Applicants.
February 26, 2022 Update
In 2022 the United States Department of Justice continues its work to ensure accessibility of websites offering Covid vaccination and other information. On January 28, 2022, the Department issued a press release titled Justice Department Secures Agreement to Make Online COVID-19 Vaccine Registration Accessible for People with Disabilities at Kroger Grocery Chain.
The Department’s settlement with Kroger’s adopts WCAG 2.1 AA as the accessibility standard, requires both automated accessibility testing and usability testing, as well as other elements of a robust digital accessibility program. The agreement specifies that Kroger’s “User Accessibility Testing Group” will be comprised of “individuals who are blind, individuals who have low vision, and individuals with disabilities who have difficulty using a mouse.”
On February 2 the Department announced a similar settlement with the Meijer Supermarket chain operating stores in the midwest.
- Read the DOJ / Meijer web accessibility press release
- Read the settlement between Meijer and the DOJ bout Meijer’s vaccination website
December 28, 2021 Update
On December 14, 2021, the United States Department of Justice announced a settlement with the Champaign-Urbana Mass Transit District (MTD). The agreement came as a result of a complaint filed with the DOJ by a disabled transit rider. The agreement provides that
Within nine (9) months of the Effective Date of this Agreement, MTD will ensure that all of its websites, web content, and mobile applications conform with the standards published by the World Wide Web Consortium (“W3C”), including Web Content Accessibility Guidelines (“WCAG”) 2.1 AA (which is an international voluntary industry standard).DOJ Champaign-Urbana Mass Transit District Settlement
There are also requirements for training, policies, reporting, and public accessibility statements. And something I’ve never seen, the agreement includes this language:
In addition to any costs related to the Relief described above, MTD will invest a minimum of one hundred thousand dollars ($100,000) over the term of the Agreement to improve its services for individuals with disabilities.DOJ Champaign-Urbana Mass Transit District Settlement
This agreement again show’s the Biden administration’s commitment to digital accessibility. And it is a reminder to public and private organizations to be proactive in its accessibility planning, policies, and implementation. It is far more costly to wait for a complaint.
December 1, 2021 Update
On December 1st the United States Department of Justice announced an agreement with Hy-Vee, Inc. requiring the supermarket and pharmacy chain to make its COVID-19 vaccine content conform to Web Content Accessibility Guidelines (WCAG) 2.1 AA. Among other things the company is required to hire an approved accessibility consultant, conduct accessibility and usability testing, and conduct training of “employees, contractors, and consultants who design, develop, maintain, manage, or otherwise have responsibility for the content and format of Vaccine Content on the Hy-Vee websites.” Read the agreement between the DOJ and Hy-Vee.
November 1, 2021 Update
On November 1st the United States Department of Justice announced an agreement with Rite Aid requiring the pharmacy to make its COVID-19 vaccine content conform to the Web Content Accessibility Guidelines (WCAG) 2.1. According to the email the DOJ sent on this date, “this is the Department’s first ADA agreement to require conformance to this version” of WCAG. Read the DOJ agreement with Rite Aid about its Covid-19 web content.