In July 2010, the United States Department of Justice (DOJ) released an Advanced Notice of Proposed Rulemaking (ANPRM) that would explicitly include websites as “places of public accommodation” under the ADA, and sought public comment regarding proposed rules intended to ensure that websites will be fully accessible to individuals with a wide variety of disabilities. Since that time, owners and operators of e-commerce websites have been anxiously awaiting the promulgation of new rules governing website accessibility, only to see the DOJ repeatedly delay issuance. In September 2015, we published an alert warning retailers of the impending promulgation of the new rules, only to see the DOJ delay issuance until April 2016. Well, on April 28, 2016, the DOJ finally acted – but instead of promulgating the long-awaited website accessibility rules, it surprisingly withdrew the 2010 ANPRM.

However, the withdrawal of the ANPRM does not mean that the DOJ is abandoning its efforts to promulgate rules governing website accessibility. At the same time it withdrew the ANPRM, the DOJ issued a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM), titled “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.” (The SANPRM is available here). Importantly, the SANPRM states that the DOJ is proceeding with rulemaking under Title II of the ADA, which applies to State and Local Government entitles, presumably as a precursor to rulemaking under Title III, which is applicable to private businesses.

The stated purpose of the April 28 SANPRM is to solicit additional public comment regarding proposed website accessibility guidelines in light of technical evolutions and advancements in the six years (!) since the DOJ issued the original ANPRM. Public comment must be received by the DOJ by no later than August 8, 2016, and the DOJ has specifically asked for input regarding 123 separate questions related to the topic. Most of these questions appear to be intended to assist the DOJ in a cost/benefit analysis surrounding requiring websites to comply with the Website Content Accessibility Guidelines 2.0 Level AA, which call for such things as:

  • Non-decorative images must contain alternative text so that screen readers can identify them.
  • Embedded videos must have closed-captioning for the deaf, and audio descriptions of what is happening for the blind.
  • The website must be navigable with a keyboard instead of just a mouse.
  • There must be sufficient color contrast.
  • Appropriate headers should be used in text sections, so that the content can be presented in logical fashion by a screen reader.

The full requirements for Level AA compliance can be found by clicking here. The DOJ is soliciting input from all those who have a stake in ensuring that websites of public entities are accessible to people with disabilities or “who would otherwise be affected by a regulation requiring that websites be accessible.” Because the DOJ’s rulemaking under Title II of the ADA will undoubtedly inform its rulemaking under Title III, private businesses have an unmistakable stake in the process because they are entities who would “be affected by a regulation requiring that websites be accessible.”

As a consequence of the withdrawal of the 2010 ANPRM, the DOJ has recently stated that the Title III rules applicable to private businesses will not be released until 2018. However, the public comment period in the April 28 SANPRM – which closes on August 8 of this year – provides private businesses the ability to express their concerns and to help shape the new website accessibility rules. For entities concerned that achieving full compliance with the WCAG 2.0 Level AA criteria would create undue burdens (in terms of implementation costs or sacrificed functionality, or both), this is an important window of opportunity to weigh in before the DOJ takes further action.

As we wrote about as recently as last month, plaintiffs are not waiting for the DOJ to act before threatening or bringing actions related to website accessibility, and courts are not waiting for DOJ action to find that retailers can be held liable under the ADA if their websites contain barriers to access for individuals with disabilities. It will remain to be seen whether fact that the DOJ has delayed its Title III rulemaking will dampen plaintiffs’ enthusiasm for these claims, or whether retailers will continue to be confronted by these claims while the legal landscape remains uncertain.