The Department of Justice (DOJ) has once again postponed its proceeding to amend regulations that would spell out the obligations of retailers, hotels, restaurants, places of entertainment and other public-facing businesses to make their websites and mobile applications accessible to individuals with disabilities under Title III of the Americans with Disabilities Act (ADA). This proceeding began in 2010 with the goal of reducing barriers many individuals with disabilities face in accessing websites and the services and benefits provided over the Internet.
According to the DOJ - Fall 2015 Statement of regulatory priorities, the DOJ is still in the process of reviewing more than 400 comments it received in response to its Advanced Notice of Proposed Rulemaking, which concluded in January 2011. Among the issues raised in that proceeding were the following:
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What standards should the DOJ adopt for web accessibility?
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What resources are available to make existing websites accessible?
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What are effective and feasible alternatives?
Title II Proceeding to Move Forward, Will Form Basis for Title III Regulations
The Advanced Notice of Proposed Rulemaking issued in 2010 had combined consideration of website accessibility issues under Title II of the ADA, which governs state and local government entities, and Title III of the ADA, which governs “places of public accommodation.” The latter are private entities whose operations fall into the specific categories listed in the ADA, e.g., restaurants, movie theaters, recreational facilities, schools, theaters, doctors’ offices, etc.
Even though the proceeding under Title III of the ADA, governing places of public accommodation, will not resume until 2018, the DOJ has stated it will move forward in 2016 with its proceeding under Title II of the ADA to adopt new regulations governing state and local government entities and the services, programs and activities they provide over the Internet.
According to its statement, the Title II proceeding will “facilitate the creation of an important infrastructure for web accessibility,” which the DOJ believes will be important for the Title III proceeding. This is consistent with the approach taken in many foreign countries, where digital accessibility measures are first imposed on government entities and only later imposed on private entities offering services to the public.
Presumably, the additional time and information is also needed to convince the Office of Management and Budget and the Office of Information and Regulatory Affairs that the regulations the DOJ seeks to adopt are tailored to fulfill the objectives of the ADA without imposing too great a burden on entities subject to the regulations.
The result of the delayed Title III proceeding: businesses subject to Title III ADA regulations will not know for at least three more years what the requirements and deadlines for implementation are, and what some permissible alternatives might be. This uncertainty sets the stage for a dramatic increase in website accessibility litigation.
DOJ to Continue to Drive Adoption of WCAG 2.0
The absence of clear, detailed guidance spelling out what obligations apply to public accommodations’ websites and mobile applications has not stopped the DOJ from pursuing an aggressive agenda outside the administrative review process. Despite the delay in the Title III proceeding, we can expect the DOJ to continue to file statements of interest in cases filed by private litigants and advocacy groups in support of their website accessibility claims and to pursue its own enforcement actions.
In recent settlements, the DOJ has required a host of businesses, such as cruise lines, museums, online grocers and others to conform their websites to Web Content Accessibility Guidelines (WCAG) 2.0, at Level AA Success Criteria. WCAG 2.0 is a comprehensive set of guidelines for web accessibility developed by the World Wide Web Consortium and sometimes referenced in rules and regulations. In several cases, DOJ settlements have required businesses to adapt to these guidelines in as little as 120 days from the date of settlement. Given the comprehensive scope of WCAG and the complexity of some websites, this pace of implementation can challenge even the most qualified web development experts and the most committed organizations with ample funds for remediation.
These settlements and DOJ statements of interest reinforce WCAG 2.0 as a de facto standard. In the meantime, any examination of what alternatives might be that could still satisfy the law, or what limitations there may be to a company’s obligations to incur the expense to implement this standard will only be addressed once the Title III proceeding resumes.
Litigation Poised to Be Catalyst for Website Accessibility, Ways to Mitigate Threat
Title III of the ADA generally requires that “places of public accommodation” ensure equal access to the goods and services they offer. The DOJ is able to pursue its regulatory agenda on website accessibility because it has expansive authority to implement the ADA’s broad objectives. But, the ADA also gives private litigants a role in enforcement. Given the delay in the DOJ’s Title III proceeding, litigation (and the threat of litigation) will be a catalyst for website accessibility for the next few years. Until new regulations are adopted, courts will be called upon to decide what measures must be deployed on the basis of the ADA’s equal access mandate on a case-by-case basis. However, because most of these cases settle, and litigating these claims can take years, even court decisions are unlikely to provide much in the way of guidance.
Businesses that have been waiting on the sidelines to adopt web accessibility solutions based on DOJ regulations and timelines now face even greater litigation risk. In recent months, plaintiffs’ law firms have led the charge to pursue web accessibility claims. Some law firms have begun nationwide demand letter campaigns alleging ADA violations on the basis of inaccessible websites. Most companies settle these claims out of court, but settlements with individuals do not provide much protection from similar, or even identical, claims by other litigants under federal or state anti-discrimination laws.
As businesses of all types face an ever-growing barrage of demand letters and lawsuits involving web accessibility, it is important that they adopt strategies to minimize their exposure. The most important of these is to take these claims and demands seriously. It is increasingly important to put a plan in place and develop an internal deadline for accomplishing some level of accessibility for websites and mobile apps. Retention of seasoned experts is necessary to assist in any remediation efforts. Finally, it is critical that companies contact experienced legal counsel to advise them in connection with these claims and to notify insurers immediately in the event that they receive a demand letter or complaint. Read our update, “DOJ Postpones Website Accessibility Proceeding: How Businesses Can Prepare in Anticipation of a Lawsuit and How to Maximize Your Insurance Once Served” for more information on what companies can do to minimize exposure.
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