Seven Years into Rulemaking Process, DOJ Withdraws ADA Website Access Regulations
In 2010, the US Department of Justice (DOJ) began the process of developing accessibility guidelines for public websites under Title III of the Americans with Disabilities Act (ADA).
Part of the goal of these regulations would have been to clarify accessibility requirements for websites of public accommodations and state and local governments.
In July of 2017, the DOJ rulemakings were placed on the department’s “inactive list,” and then on December 26, they were officially withdrawn.
DOJ assessing whether regulations are “necessary and appropriate”
In an official announcement, the DOJ stated:
The Department is evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate. Such an evaluation will be informed by additional review of data and further analysis. The Department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.
There has been some discussion in the world of disability rights law as to the ramifications of this decision by the DOJ.
Seyfarth Shaw sees this move as a blow to the disability community because current problems will continue to persist. They say it could mean an indefinite perpetuation of expensive and drawn-out court cases over the accessibility of public websites, without clear guidelines for businesses to follow:
This is an unfortunate development for the disability community and covered businesses alike. Instead of having clear rules to follow, businesses will have to look to the constantly evolving patchwork of decisions coming out of the courts for guidance. Meanwhile, the number of website accessibility lawsuits continues to surge as businesses scramble to make their websites accessible.
From another perspective, this doesn’t change anything.
On her legal blog, internationally-recognized disability rights lawyer Lainey Feingold says it doesn’t matter that these clarifying guidelines have been removed. Because, due to the way it was originally written, as a civil rights law, the ADA has always required websites of public accommodations to be accessible:
Does it matter? From a legal standpoint, the short answer is no. […] Website owners, developers, contractors must still build accessible websites. Accessibility is a civil right with or without federal ADA regulations.
How the courts currently interpret the ADA as it applies to websites
Web accessibility is gaining noticeable momentum in courts across the US. There have been a lot of victories and support from the courts themselves.
In the same post, Lainey referenced a growing list of judges who agree that the ADA already legally requires websites of public websites to be fully accessible.
For example, one judge — who happens to be 96 years old — while presiding over the case against Blick Art Materials regarding their website’s accessibility issues, recently stated:
Today, internet technology enables individuals to participate actively in their communities and engage in commerce from the comfort and convenience of their home. It would be a cruel irony to adopt the interpretation of the ADA espoused by Blick, which would render the legislation intended to emancipate the disabled from the bonds of isolation and segregation obsolete when its objective is increasingly within reach.
[Read more about Lainey’s commentary on the ADA’s application to public websites.]
Of course, not every judge will share that perspective (unless they are required to do so by the DOJ through new rules like the ones that were just withdrawn). For now, this means the best legal compass organizations might have is, as Seyfarth Shaw describes it, a “constantly evolving patchwork of decisions coming out of the courts.”
In the meantime, if more organizations recognize and appreciate that millions of Americans with sensory disabilities like hearing loss and vision loss require accessible websites to participate in society like everyone else, then we won’t have to worry about more specific guidelines from the DOJ.
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