In an astonishing move, the Department of Justice (DOJ) announced that it will not issue any regulations for public accommodations websites until fiscal year 2018—eight years after it started the rulemaking process with an Advanced Notice of Proposed Rulemaking (ANPRM).
As we previously discussed, DOJ made a number of statements in the 2010 ANPRM that led businesses to reasonably conclude that they could and should wait for the regulation to issue before taking action. Among other things, the ANPRM acknowledged a need to adopt a legal technical standard for an “accessible” website and asked how much time businesses should be given to comply. However, since issuing that ANPRM, DOJ’s enforcement attorneys have investigated numerous public accommodations, pressuring them to make their websites accessible. DOJ even intervened in recent lawsuits (e.g., here, here, and here) taking the position that the obligation to have an accessible website has existed all this time in the absence of any new regulations.
DOJ claims that it is delaying the public accommodations website regulations so that it can learn from the development of state and local government website regulations, which it will supposedly issue in January 2016. Specifically, DOJ states in its Fall 2015 Statement of Regulatory Priorities that “[t]he Department believes that the title II web site accessibility rule will facilitate the creation of an important infrastructure for web accessibility that will be very important in the Department’s preparation of the title III web site accessibility NPRM.” Whatever the reason, DOJ’s delay in issuing public accommodations website regulations perpetuates the murky waters businesses must navigate, with no regulatory guidance about what the law requires of them. Right now there is no legally binding technical standard that defines an “accessible” website. There is no rule about whether a business is required to ensure that third party content or software on its site is “accessible.” There is no rule about whether the existence of an occasional unintended barrier on a website which can arise from routine updates is a violation of the ADA.
In the meantime, the DOJ and private plaintiffs continue to pressure businesses, through enforcement actions and lawsuits, to bring websites into conformance with a standard no law requires, citing the ADA’s general principle of “equal access”. This puts businesses in an untenable position, as they struggle to prioritize what can often be considerable spend and business disruption to bring a website into conformance with this standard, against the multitude of other, established, regulatory requirements with which the business must comply upon risk of violating established laws. This external pressure has only increased of late—we have seen plaintiff’s lawyers initiated a virtual tsunami of demand letters and lawsuits against all manner of businesses (e.g., retailers, hotels, banks) alleging that their websites are not accessible to claimants with disabilities. We have seen (and reported) time and again—hence the dearth of case law in this area—businesses settle (most recently, as we had predicted, Scribd joined that club), quite simply (to the outside world; not so simple to the business’s interior decision-making) because it is less expensive to settle than to litigate in an uncertain legal landscape. These enterprising litigants know this.