DOJ Drops Plans for ADA Guidance

Advertising Law

It’s official: After years of waiting, the Department of Justice (DOJ) will not provide online retailers with guidance on the boundaries of website accessibility under the Americans with Disabilities Act (ADA).

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 DOJ followed up with a notice of proposed rulemaking promising “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 pushed out the target date to 2018, but in the interim continued to bring actions against web-based entities for alleged violations.

With the change in administration, the DOJ moved the regulations to the “inactive” list of its regulatory agenda last August.

Now the agency has officially withdrawn the advance notice of proposed rulemaking. “The Department is evaluating whether promulgating regulations about the accessibility of web information and services is necessary and appropriate,” the DOJ explained in its Federal Register filing. “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.”

In the absence of federal regulations, consumers have filed class actions across the country accusing retailers of violating the statute by not making their websites accessible. Courts have struggled with the online application of the ADA, with one California judge dismissing a lawsuit over concerns about due process, since online retailers have no guidance as to what is statutorily required to make their websites accessible.

At the other end of the spectrum, a federal court in Florida ruled that a supermarket chain can be liable under the ADA for operating an inaccessible site, in what is believed to be the first trial on the ADA’s applicability to a website. The judge ordered the defendant to make its site accessible to individuals with disabilities who use computers, laptops, tablets and smartphones. He also directed the defendant to adopt and implement a web accessibility policy, to provide mandatory training to all employees who write or develop programs or code for the site, and to conduct tests of the website every three months to ensure compliance.

To read the DOJ’s Notice of Withdrawal, click here.

Why it matters: The DOJ’s decision leaves online retailers with a great deal of uncertainty and the continued risk of litigation from consumer class actions. While businesses rarely call for the creation of new regulations, the lack of a clear standard for online accessibility that would establish a baseline of responsibility—or the potential for safe harbor from liability—could prove disappointing to online retailers.



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