DOJ’s Recent Website Accessibility Letter Reaffirms Obligations While Opening the Door to a Due Process Defense

The Department of Justice has finally broken its long silence on website accessibility under the Americans with Disabilities Act (ADA), and the news is both good and bad. The bad: the Department rejected calls from the business community by reaffirming its position under the Obama administration that websites of businesses open to the public must be accessible to persons with disabilities. The good: public accommodations need not conform to any particular standard to meet obligations under the ADA.

As the Department wrote in its September 25, 2018, response letter:

 [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. 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.

This statement comes in response to a June 20, 2018, letter to Attorney General Jeff Sessions from a large bipartisan Congressional contingent seeking guidance and clarity with regard to website accessibility under the ADA. While the Department did not provide what the June 2018 Congressional letter sought (i.e., a statement that private website access lawsuits violate due process principles given the lack of clear statutory authority or any final rule by the Department establishing website accessibility standards), the Department has effectively given owners and operators of places of public accommodation permission to define their own standards for accessibility as well as a defense to claims by plaintiffs that the employers have run afoul of the ADA simply because they have not complied with the private industry standards known as Website Content Accessibility Guidelines (WCAG) 2.0 or 2.1. 

The Department’s statement also lends credence and support to the argument that website accessibility claims may violate due process given the absence of any regulations regarding websites and the lack of specificity in the ADA itself on this topic. It remains to be seen how courts will react to these arguments in light of the Department’s letter, which swims against the current of a substantial body of law mostly rejecting these due process arguments. Still, this development presents a major opportunity to owners and operators of places of public accommodation that use websites to reverse the course of these recent cases.   

Until courts begin to adopt this due process defense on a more consistent basis, a public accommodation may want to consider taking steps to make its website usable by those with visual and hearing impairments. After all, the Department’s letter reaffirms the obligation to make websites accessible. Conformance to WCAG 2.0 or 2.1 likely remains the only predictably safe standard to ensure that websites comply with the ADA.