At the end of September 2018, the U.S. Department of Justice (DOJ) responded to a June letter sent by 103 members of the U.S. House of Representatives asking it to take steps to stop the flood of lawsuits being filed against businesses over their alleged failure to make their websites sufficiently accessible to individuals with disabilities. While the DOJ’s letter does little to clarify what is expected of businesses, gives little reason to expect any regulatory action soon, and offers nothing to stem the tide of private lawsuits, it does provide some insight as to the DOJ’s current stance on approaches and limits to website accessibility. In the meantime, private demands and lawsuits will continue to run amok.

Members of Congress Ask the DOJ to Act

In their June 20, 2018 letter, 103 members of the House of Representatives told the DOJ about their concerns over the number of lawsuits being filed over the alleged failure to make websites accessible and stated, “[t]he absence of statutory, regulatory, or other controlling language on this issue only fuels the proliferation of these suits since there are no requirements these complaints have to meet.” They noted that the DOJ’s decision to abandon its rulemaking efforts in December 2017 only further exacerbated the problem. Their letter asked the DOJ to consider stating publicly that “[p]rivate legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and the issuance by the Department, of the final rule establishing website accessibility standards.”

The DOJ Declines the Invitation to Act, but Provides Some Limited Insight

In its response, the DOJ notes that it had first “articulated its interpretation” that Title III of the ADA applies to websites of places of public accommodation over 20 years ago. It contends that this position is consistent with the ADA’s requirement that goods, services, privileges, or activities provided by places of public accommodation be equally accessible to individuals with disabilities. Second, the DOJ rejected the contention that the lack of a specific regulation that requires websites to be accessible and that specifies a technical standard prevents enforcement of the law without violating companies’ right to due process. To the contrary, the DOJ claims that the absence of specific regulatory requirements, and its reliance on the generalized barrier removal obligation in the statute, means that places of public accommodation have flexibility in the way they can ensure their websites do not discriminate based on disability and the way they provide effective communication to members of the public. Third, the DOJ said that noncompliance with any voluntary standards on website accessibility does not necessarily indicate that the company operating the website is violating the ADA.

The DOJ’s response comes on the heels of a letter from Senator Charles Grassley (R-IA) and five other senators to the DOJ sent at the beginning of September. Like their colleagues in the House of Representatives, the senators expressed concern about the uncertainty over whether Title III of the ADA applies to websites and the number of website accessibility lawsuits being filed. They urged the DOJ to provide clarity to the business community so businesses could devote their resources to serving customers with disabilities rather than paying to resolve lawsuits. The senators asked the DOJ to brief their staff by September 28, 2018.

Are There Any Takeaways for Businesses?

What, if anything, does the DOJ’s latest statement mean for businesses? It appears to signal that the DOJ is not inclined to resume rulemaking in this area soon. It also dashes any hopes that the DOJ would (or could) intervene in ongoing private litigation or suggest that courts stay these cases until it develops regulations.

In early October 2018, Congress approved the appointment of Eric Drieband as the Assistant Attorney General for the Civil Rights Division who will oversee the DOJ’s efforts to enforce Title III of the ADA. Businesses will have to wait to see if his appointment will change the DOJ’s positon on these issues.

While it is discouraging that the DOJ does not appear to be inclined to resume its rulemaking and provide both definitive standards and a timetable for compliance, there are two takeaways from this letter that may assist some companies facing the threat of lawsuits over the accessibility of their websites. First, the DOJ reiterates that its position is that Title III of the ADA applies to the websites of public accommodations; it does not contend that websites themselves (without any relation to a place of public accommodation) are places of public accommodation covered by the ADA. Second, the DOJ repeats the assertion it made in in 2010 in the advanced notice of proposed rulemaking on website accessibility that there may be other ways of providing reasonable accommodations to individuals with disabilities other than conformance with a technical standard such as the WCAG 2.0 Level AA success criteria. The DOJ appears to remain open to arguments that providing a telephone number through which members of the public can obtain the same information, goods and services as a person can obtain via the website may be comply with the ADA. Similarly, if strict conformance with the WCAG 2.0 Level AA standards is not required, the DOJ may find that use of accessibility widgets designed to improve the way screen readers interact with websites may be providing equivalent facilitation for many individuals with disabilities.

Without regulatory guidance or congressional action, however, businesses will continue to face these lawsuits over website accessibility. The burden will be on businesses to make these arguments and see if the courts will provide much-needed guidance.

In the interim, businesses may want to become familiar with the WCAG 2.0 and 2.1 Level AA success criteria and consider modifying their websites so that they conform to the criteria. They also may want to review the accessibility of their mobile applications as we expect to see an increase in the number of claims filed over the accessibility of mobile applications as well.