DOJ Offers Hope to Sites Facing ADA Litigation

Advertising Law

Continuing the Department of Justice’s (DOJ) hands-off approach to applying the Americans with Disabilities Act (ADA) to websites, the agency responded to an inquiry from lawmakers with an answer that may help defendants facing litigation.

In July 2010, the DOJ issued an advance notice of proposed rulemaking to issue regulations under Title III of the ADA. Five years later, the agency followed up with a notice of proposed rulemaking that promised to “address the obligations of public accommodations to make goods, services, facilities, privileges, accommodations, or advantages they offer via the Internet, specifically at sites on the World Wide Web, accessible to individuals with disabilities” and to “make clear to entities covered by the ADA their obligations to make their websites accessible.”

The agency repeatedly pushed out the target date for its rulemaking but in the interim continued to bring actions against web-based entities for alleged violations of the statute.

Private plaintiffs did, too, slowly building a growing body of case law applying the ADA to websites. For example, a federal court in Florida ruled that a supermarket chain can be liable under the ADA for operating an inaccessible site, while the U.S. Court of Appeals, Eleventh Circuit recently sided with a blind man to find that his allegations of website inaccessibility were sufficient to move his ADA suit forward, reversing dismissal of his claims.

Under the current administration, the DOJ withdrew its advance notice of proposed rulemaking in January.

“The Department is evaluating whether promulgating regulations about the accessibility of web information and services is necessary and appropriate,” the DOJ wrote in its notice of withdrawal. “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.”

Seeking further clarity, Rep. Ted Budd (R-N.C.) and fellow legislators reached out to the DOJ earlier this year. In response, Assistant Attorney General Stephen E. Boyd reiterated that the ADA applies to public accommodations’ websites, which should be equally accessible to people with disabilities.

However, the DOJ declined to be more specific with regard to what steps a website operator can take to achieve accessibility and refused to endorse a standard based on the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines, often cited by plaintiffs and courts alike in ADA litigation.

“[T]he Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements,” Boyd wrote Rep. Budd. “Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”

To read the DOJ’s letter, click here.

Why it matters: The DOJ’s “flexible” standard is something of a double-edged sword for website operators. On the one hand, the lack of a clear standard from the agency continues to encourage ADA litigation. However, the DOJ’s statement that noncompliance with a voluntary technical standard—i.e., the W3C’s guidelines—doesn’t equate with a statutory violation provides additional arguments for defendants in such cases.