Long after the Department of Justice’s (DOJ) Statements of Interest (SOI) were filed in June of 2015 in the cases involving Harvard University and the Massachusetts Institute of Technology (MIT), touching off a flood of litigation and threatened litigation, the magistrate judge has issued her report and recommendation to the district judge that the defendants’ motions to dismiss be denied. While subject to objections and the district judge’s determination, the decision is a setback for those who do not currently have websites that are accessible to persons with disabilities.

In her central finding, the magistrate judge opined that Title III of the Americans with Disabilities Act (ADA) has always applied to the Internet and that the ADA’s requirement to provide auxiliary aids and services to ensure effective communication with individuals with disabilities extends to online content under 42 U.S.C. § 12182(b)(2)(A)(iii), 28 C.F.R. § 36.303(a). The magistrate judge noted that while the application of Section 504 of the Rehabilitation Act of 1973 to videos on university websites may be fairly new, the failure to accommodate theory is not and that, therefore, the plaintiffs have stated a claim under Section 504that should survive the motion to dismiss.

Of note, the court rejected the universities’ arguments that the mandate to comply with the design standards in the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG) (42 U.S.C. § 12183; 28 C.F.R. § 36.406), rather than the auxiliary aids and services requirement, governs its website, noting (incorrectly) that the ADAAG does not apply to non-physical structures. The magistrate judge also rejected the universities’ argument that requiring captioning would run afoul of 28 C.F.R. § 36.307, which provides that a public accommodation is not required “to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities,” because the website is a service, not a good.

The magistrate judge also rejected the universities’ “primary jurisdiction” argument, finding that neither of the twin purposes underlying the doctrine—the promotion of desirable uniformity in determining administrative questions and the resort to the specialized expertise of an agency in resolving highly technical questions of fact—would be aided by application of the doctrine in this case. On the other hand, the magistrate judge noted the great potential for a delay of unknown duration while the federal administrative rulemaking process proceeds, leaving individuals who have certain disabilities without equal access to websites. Specifically, the magistrate judge found that because the inquiry regarding whether a website is accessible is fact-specific, and any declaratory or injunctive relief would be specific to Harvard or MIT, no concern exists regarding administrative consistency. The magistrate judge also noted that the DOJ is not an “expert” on website availability—it relies on outside experts in formulating its regulations—and that if the court needed additional, technical expertise, it would call on its own experts.

In one of the more disconcerting parts of the opinion, the magistrate judge stated that even if it imposes obligations on Harvard or MIT that wind up being more onerous than the DOJ’s eventual regulations, that does not undermine the uniformity of the DOJ’s regulatory interpretation because any additional burden (unless it is undue) on the schools is irrelevant to a primary jurisdiction analysis. This statement sums up the magistrate judge’s overarching view that when it comes to accommodations, it is better to err on the side of caution.

The magistrate judge also noted that in its Statements of Interest, the DOJ has reiterated its position that the ADA applies to the Internet and that the DOJ’s consistently-stated position cannot be squared with the notion that it is permissible to discriminate until the DOJ issues specific regulations governing website access.

However, the opinion was not all doom and gloom. The magistrate judge noted throughout the opinion that the inquiry is fact-specific, and such facts may allow the schools to ultimately prevail on a number of affirmative defenses, such as undue burden and fundamental alteration of the nature of the service. On the subject of remedies, the magistrate judge also pointed out that it is not limited to requiring schools to caption every audio-visual file because the court may consider a variety of different options regarding captions.

Of course, it is also important to note what the magistrate judge did not decide. First, this is merely a “report and recommendation” to the district judge, which could be affirmed as the court’s order, modified, or rejected. Second, the magistrate judge emphasized that these issues were raised on a motion to dismiss, a procedural posture in which the facts as alleged by the plaintiffs must be taken as true. The magistrate judge did not find that the universities had violated the ADA; rather, the magistrate judge merely found that the plaintiffs had stated a cognizable claim that could proceed to the next phase of litigation to determine whether a violation of the ADA occurred. Finally, because of this procedural posture, the court said nothing about the DOJ’s position that Website Content Accessibility Guidelines (WCAG 2.0) Level AA is the applicable standard, and we remain unclear on that point.

What Can Your Business Do?

This pending decision, not only further tilts the playing field in favor of disabled plaintiffs, it will certainly give plaintiffs and their attorneys more confidence than they already have in filing website accessibility claims, as it provides ammunition to avoid dismissal pursuant to Rule 12(b)(6). What can be done to minimize liability? This report and recommendation does not change the current situation. Unless they are prepared to dig in for a long and challenging litigation battle, businesses will probably want to assess their websites and undertake efforts to comply with the standards articulated in the private industry Website Content Accessibility Guidelines 2.0 Levels A and AA, which was adopted by the DOJ in its proposed Interim Final Rule under Section 508 of the Rehabilitation Act. 80 Fed. Reg. 10880 (Feb. 27, 2015). While this standard has not been implemented and does not apply to the websites of public accommodations, it is the standard that is consistently identified by the DOJ.  Because the DOJ has announced a delay of at least three years of proposed website access regulations, there is not going to be official clarification anytime soon. Compliance with this standard is likely your best chance of defending claims during this period of uncertainty, made even less certain by these dual reports and recommendations. 

 What Is Next?

As these decisions were merely reports and recommendations, they are not final decisions and are not binding. The parties have 14 days to file objections, and the opposing side has 14 days to respond to objections. These are all considered by the district court before an official opinion is entered. Members of the Disability Access Practice Groupwill continue to monitor developments and provide updates as they develop.