Uncertainty Increases After DOJ Drops ADA Regulations

Advertising Law

Uncertainty for online retailers increased after the Department of Justice (DOJ) pressed pause on its plans to issue regulations under Title III of the Americans with Disabilities Act (ADA).

After issuing an advance notice of proposed rulemaking in July 2010, the DOJ moved forward to a Notice of Proposed Rulemaking in June 2015 “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 indicated that in the interim, it would not hesitate to bring actions against web-based entities for perceived violations.

At the same time, consumers filed class actions accusing retailers of violating the statute by not making their websites accessible. Courts across the country have struggled with whether the ADA applies to websites, with one California judge dismissing a lawsuit over concerns about due process, given the lack of guidance for online retailers on what is required to make a website accessible pursuant to the ADA.

At the other end of the spectrum, a federal court in Florida ruled that a supermarket chain can be liable under the federal statute for operating an inaccessible site, in what is believed to be the first trial on the applicability of the ADA to a website.

The agency has now moved the regulations to the “inactive” list of its regulatory agenda, signaling that no further action will be taken in the near future.

This is the first time federal agencies have used the inactive list, which includes regulations that have not been formally withdrawn but aren’t included in the plans for rulemaking. Whether the regulations will move back to the regulatory plan or remain where they are is unclear.

To read the DOJ’s inactive list of its regulatory agenda, click here.

Why it matters: While businesses rarely rejoice at the creation of new regulations, the lack of a clear standard for online accessibility has prompted an increasing number of consumer class actions against retailers with an online presence. The decision by the current DOJ not to pursue regulations that would at the very least establish a baseline of responsibility—or even a safe harbor from liability, as many had hoped—leaves retailers with only more uncertainty and risk of litigation.

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