Andrew Ferren intellectual property commercial transactions corporate nonprofit compliance lawyer attorney
Blog Posts: Retail Law Advisor

Website and Mobile App Accessibility: The DOJ Kicks the Can

In a previous post, we wrote about Title III of the Americans with Disabilities Act (“ADA”) as it applies to businesses’ public websites and mobile apps. At the time of our last writing, it was expected that the United States Department of Justice (“DOJ”) would publish its proposed rules regarding website accessibility under Title III by April 2016. That expectation had many businesses taking a wait-and-see approach to addressing website accessibility, delaying action until there was more clarity on how the DOJ’s rules will apply to websites and what the business must do to comply.  In an unexpected move, however, the DOJ recently announced it is again delaying the proposed rules, this time until 2018.

The delay in the DOJ’s proposed Title III rules comes at a time when Title III claims for website inaccessibility are surging. And while it has continued to join and support such claims, as it had before, the DOJ has gone a step farther.  In Statements of Interest the DOJ filed in the National Association of the Deaf’s lawsuits against two private universities, the DOJ for the first time explicitly stated that public accommodations have a “preexisting obligation” under Title III to make their public websites accessible.  In other words, in the DOJ’s judgment, the wait-and-see approach is not acceptable.  Despite there being no law that defines what being accessible means or requires for a website, the DOJ nonetheless is taking the position that businesses must make their public websites accessible, and must do so now.

In light of the DOJ’s recent actions, ensuring website accessibility no longer should be thought of as a business staying ahead of the curve, but instead is about ensuring compliance with what the DOJ insists are requirements right now.  Although there is no absolute certainty as to what those current requirements truly are, the DOJ’s go-to standard remains WCAG 2.0 level AA, which the DOJ has continued to impose in settlements.  The next indication of the DOJ’s intent is expected when the DOJ publishes its Title II web accessibility rules – applicable to the websites of state and local government entities, and currently planned for early in fiscal year 2016 – as the DOJ has stated that it intends to use the web accessibility infrastructure created by the Title II rules in order to prepare its Title III rules.  In the meantime, the lack of certainty in the current requirements leads to a similar lack of certainty in related litigation, which in turn leads to more and more plaintiffs filing lawsuits, knowing that such uncertainty will force defendants to settle.  Businesses seeking to mitigate their risks, therefore, would be wise to address accessibility sooner rather than later, and to be proactive about ensuring that their website and mobile apps are equally accessible to persons with disabilities.