In a surprise announcement with major repercussions for businesses and their websites, on November 19, the Department of Justice (DOJ) announced in its Fall 2015 Statement of Regulatory Priorities that it is delaying—by at least three years—its proposed regulations on the standards for creating websites that are accessible to the disabled. This is the latest of many delays in the regulatory process that started when the DOJ issued an Advanced Notice of Proposed Rulemaking on web accessibility in July of 2010. 75 Fed. Reg. 43460 (July 26, 2010), The new target date for the website regulations is for some time in 2018.
The terse and only explanation offered by the DOJ for this further delay is that it wanted the benefit of time and experience following the finalization in 2016 of website rules under Title II of the Americans with Disabilities Act that applies to state and local government websites. The DOJ states in relevant part:
The Department believes that the title II web site accessibility rule will facilitate the creation of an important infrastructure for web accessibility that will be very important in the Department’s preparation of the title III web site accessibility NPRM. Consequently, the Department has decided to extend the time period for development of the proposed title III web site accessibility rule and include it among its long-term rulemaking priorities. The Department expects to publish the title III web site accessibility NPRM during fiscal year 2018.
This explanation does not explain the DOJ’s many fits and starts in this regulatory process.
While many businesses have taken comfort in the DOJ’s failure to act on its intended website regulations, recent events prove that there is no comfort in that delay. First, in November of 2014, the DOJ announced the settlement of its first private enforcement action that focused primarily on the accessibility of a public accommodation’s website.
Then, in February 2015, the DOJ issued its Proposed Final Rule for the accessibility of websites for federal contractors and for state and local governments. This move was significant because the DOJ had finally chosen a standard—Web Content Accessibility Guidelines (WCAG) 2.0, Level AA—by which it was proposing that websites should be governed. In last week’s announcement, the DOJ shared its intention for these regulations to become final in early fiscal 2016.
Finally, in June of 2015, the DOJ filed Statements of Interest in two website cases against Harvard University and the Massachusetts Institute of Technology. In these cases, the DOJ made clear that it had completed a full reversal of its previous measured approach to requiring website accessibility. Among other things, the Statements of Interest emphatically state that there is a current requirement to make websites accessible, even absent progress in the regulatory arena. The Statements also make clear that WCAG 2.0, Level AA is the standard by which the DOJ at least will assess website compliance.
That was all the assurances that certain segments of the plaintiffs’ disability bar needed that they were now free to litigate or threaten litigation in this area. Two law firms alone—one based in Pittsburgh and one based in Southern California—have sent out dozens (if not hundreds) of demand letters, insisting they have clients who have visited the websites of public accommodations and found them to be lacking in accessibility. Most public accommodations have chosen to settle these cases and make improvements to their websites.
This is the why the delay in the DOJ’s rulemaking activity has left private businesses increasingly exposed to this kind of litigation and threatened litigation. Without the DOJ’s formal, final regulation, the outcome of any website litigation is uncertain. Worse yet, the WCAG 2.0, Level AA standards are self-described “guidelines” that do not always lend themselves to strict tests of compliance or non-compliance.
Despite this continuing uncertainty, businesses may want to make efforts to improve the accessibility of their websites in a carefully-planned manner that can be presented to a court in any ensuing website litigation. We will discuss these and other topics in the ever-evolving and complex arena of website accessibility—including what private businesses should do in light of these recent developments— during our upcoming webinar. Join our speakers on December 10, 2015 at 2:00 p.m. – 3:00 p.m. Eastern for “Website Accessibility Litigation: What Every Business Needs to Know.”