Seyfarth Synopsis: Our thoughts on the impact of the election on the ADA Title III landscape.

We now know that January 20, 2017 will bring a definitive regime change. How will this change impact Title III of the ADA, the current litigation environment, and pending Department of Justice (DOJ) regulations and enforcement activities? Here are our thoughts.

The ADA was created through bipartisan effort, signed into law by President George Bush in 1990. Since that time, the law has only been amended once – in 2008 – to expand the definition of what constitutes a covered “disability.” In our experience, politicians are reluctant to take any action that would be viewed as being harmful to people with disabilities. Thus, earlier efforts to amend the law to curb lawsuit abuse were unsuccessful. More recently, in response to the surge in the number of ADA Title III lawsuits, business groups have again pushed for reform legislation to address so called “drive-by” lawsuits. These lawsuits are brought by serial plaintiffs who have filed hundreds of cases and are not likely to be real customers seeking to access the goods and services of a targeted business. Bills introduced in the House and Senate to address this situation may gain more traction with a Republican President and Republican-controlled Congress. That said, the Trump administration will have many higher priority items to push through Congress, so we doubt that the law will change any time soon. Because changes to the law are unlikely, we do not foresee a decrease in the number of ADA Title III lawsuits filed in the coming years.

The impact of a Trump administration will most likely be felt at the DOJ, which is responsible for issuing ADA Title III regulations and enforcing the law. The Trump administration will appoint a new Assistant Attorney General for Civil Rights, as well as the deputies and counselors who will oversee the Civil Rights Division. The Disability Rights Section (DRS) – which has responsibility for the ADA – is within this Division.

The new Assistant Attorney General for Civil Rights and his or her political appointees will set the regulatory and enforcement agenda for DRS. On the regulatory front, DOJ is currently working on proposed rules for websites, equipment and furniture, and movie captioning and audio description. The new leadership will need to review and provide policy direction on those proposed rules, which could result in further delays. The review will likely affect the content of those rules as well. One significant question that the DOJ has posed for public comment concerning the proposed website rule is whether there should be less demanding standards for small businesses. Although DOJ has, in the past, refused to create less stringent rules for small businesses, a Trump administration may be more sympathetic to the plight of small business owners in these upcoming regulations.

It is also possible that a Trump administration would simply abandon all rulemakings currently under development, given the President-elect’s stated aversion to regulations generally. Such an action would actually be harmful to businesses which need certainty about their obligations, especially when it comes to their websites. The absence of regulations has created a vacuum that plaintiffs’ attorneys are filling with a tsunami of demand letters and lawsuits that are catching businesses by surprise. The issuance of clear and sensible rules would put an end to this chaos, and the Trump administration should instead work quickly to issue them.

With respect to enforcement, a Trump administration may be less inclined than the current one to pursue actions that would expand the existing boundaries of the law. For example, one DOJ enforcement stance that we have found troubling is its aggressive effort to pressure businesses to immediately make their websites and mobile apps accessible in conformance with a privately developed set of accessibility guidelines, even though DOJ has not issued even proposed regulations that would adopt a technical standard for what constitutes an accessible website and set a date for compliance with that standard. It is possible that a Trump administration would discontinue these enforcement actions until a final rule is issued, although we would be surprised if this actually took place.

For now, all we know is that there likely be some change, and we will be here to report it to you when it happens.