DOJ Disables Titles II and III Website Regulations

The U.S. Department of Justice (DOJ) has placed its once-planned website accessibility regulations under Titles II and III of the Americans with Disabilities Act (ADA) on an inactive list, putting to rest speculation about what the Trump administration may do with respect to the long-promised regulations. As published in the Unified Regulatory Agenda, a semiannual compilation of information about regulations under development by federal agencies, plans that once had the Title II and III regulations coming in Fiscal Years 2017 and 2018, respectively, are now inactive. 

No one knows for sure what relegation to the inactive list means as this is the first time that federal agencies have prioritized their rulemaking agendas by dividing proposed regulations into three categories: (1) the regulatory plan, which highlights regulatory priorities for the coming year; (2) long-term actions, which are regulatory actions not expected within 12 months; and (3) the inactive list, which includes regulations that have not been formally withdrawn, yet seem to have no known place in the agency’s planned rulemaking. 

The placement of the Title II and Title III website accessibility regulations on the inactive list represents a significant departure from past positions of the DOJ, which had these regulations expected in each of the coming fiscal years.  

At first blush, fewer regulations may appear to be a positive development for the business community; however, the lack of official standards ensures that the only guidance for businesses open to the public (so-called “places of public accommodation”) and state and local governments is the developing and generally unfavorable body of case law in this area. For the time being, the only official standard in this realm is for entities covered under Section 508 of the Rehabilitation Act of 1973, federal agencies and federal contractors. Pursuant to the final rule published by the U.S. Architectural and Transportation Barriers Compliance Board (Access Board), these entities’ websites must conform to the Website Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA) standard. As WCAG 2.0 AA is the only official standard that has been adopted regarding websites, this standard is likely the best option for Title II and Title III entities that are striving for compliance with the ADA.

In addition, hopes have been dashed that any regulatory effort may provide relief to the business community in the form of a “safe harbor,” grace period, options for alternatives to website accessibility, or clarity on how strictly a website must comply to avoid liability under the ADA.

As a result, private businesses may want to consider complying with WCAG 2.0 AA at the earliest possible time as the best hope to avoid liability and litigation. In the absence of immediate compliance, steps can be taken to provide accessibility to web-based services through alternative means and to generate a compliance schedule and plan to which the business is prepared to adhere.