Seyfarth Synopsis: Trump Administration’s first Unified Agenda reveals DOJ has placed web accessibility, medical equipment, and furniture rulemakings under Title II and III of the ADA on Inactive List.

Federal agencies typically provide public notice of the regulations that are under development twice a year in the Unified Regulatory Agenda. The first Agenda the Trump Administration issued, which went online July 20, 2017, contains some very noteworthy changes from the last such Agenda, issued by the Obama Administration.

For the first time, the Agenda breaks down all agency regulatory actions into three categories: active, long-term, or inactive. While the Agenda does not define these terms, it appears that only the active and long-term matters receive a description and projected deadlines. The inactive matters appear on a PDF document under a link called “2017 Inactive Actions”.

The Agenda places the Department of Justice’s rulemakings under Titles II and III of the ADA for websites, medical equipment, and furniture of public accommodations and state and local governments on this 2017 Inactive Actions list, with no further information. Thus, as we had predicted, there will be no regulations about public accommodations or state and local government websites for the foreseeable future.

In the absence of website regulations, the courts are filling the void with a patchwork of decisions that often conflict with one another. The uncertain legal landscape has fueled a surge of lawsuits and demand letters filed and sent on behalf of individuals with disabilities alleging that the websites of thousands of public accommodations are not accessible.

The placement of the website and all other pending ADA Title III rulemaking activities (medical equipment and furniture) on the Inactive list is part of the Administration’s larger effort to reduce the number of regulations in development.  The Administration touted the following accomplishments on the Agenda’s homepage:

  • Agencies withdrew 469 actions that had been proposed in the Fall 2016 Agenda;
  • Agencies reconsidered 391 active actions by reclassifying them as long-term (282) and inactive (109), allowing for further careful review;
  • Economically significant regulations fell to 58 – about 50 percent fewer than Fall 2016;
  • For the first time, agencies will post and make public their list of “inactive” rules.

Edited by: Kristina M. Launey.

Seyfarth Synopsis:  An executive order from President Trump will likely halt the Justice Department’s public accommodations website rulemaking.

President Obama’s Department of Justice (DOJ) had stated that proposed regulations for public accommodations websites would be issued in 2018—eight years after the agency began its rulemaking process.  The likelihood of such a proposed regulation being issued now is virtually non-existent.

Among the flurry of executive orders President Trump signed this week was one entitled “Reducing Regulation and Controlling Regulatory Costs”.  This EO virtually obliterates any chance that the DOJ will issue any website regulations for public accommodations websites during Trump’s Administration.

The EO directs all federal agencies to:

  • Identify at least two existing regulations to be repealed for each new regulation;
  • Ensure that the total incremental cost of all new regulations, including repealed regulations, to be finalized in 2017 be “no greater than zero;”
  • Offset any new incremental costs associated with new regulations by eliminating existing costs associated with at least two prior regulations.

The EO exempts regulations relating to: (1) military, national security, or foreign affairs functions of the United States; and (2) agency organization, management, or personnel.  It also vests the Director of the Office of Management and Budget with the authority to grant additional exemptions.  The stated purpose of this EO is to “manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations”.  We therefore assume that the EO would not apply to regulations applicable to state and local governments that the DOJ has been working on and could issue under Title II of the ADA.  It is unclear what, if any, impact this EO may have on the Title II regulatory effort.

While our prediction may seem dire, we cannot fathom what two regulations the DOJ would repeal to make way for new public accommodations website regulations and offset their associated cost.  Though some may think that businesses are better off with no regulations on this subject, we disagree.  The current tsunami of lawsuits and demand letters about allegedly inaccessible websites is the result of uncertainly and absence of regulations that impose reasonable rules that provide adequate time for businesses to comply.  This is one issue upon which virtually all who practice in this space – on the legal, technological, or advocacy side – agree.

Edited by Kristina Launey.

Seyfarth Synopsis:  Our thoughts on the impact of the election on the ADA Title III landscape.

We now know that January 20, 2017 will bring a definitive regime change. How will this change impact Title III of the ADA, the current litigation environment, and pending Department of Justice (DOJ) regulations and enforcement activities?  Here are our thoughts.

The ADA was created through bipartisan effort, signed into law by President George Bush in 1990.  Since that time, the law has only been amended once – in 2008 – to expand the definition of what constitutes a covered “disability.”  In our experience, politicians are reluctant to take any action that would be viewed as being harmful to people with disabilities.  Thus, earlier efforts to amend the law to curb lawsuit abuse were unsuccessful.  More recently, in response to the surge in the number of ADA Title III lawsuits, business groups have again pushed for reform legislation to address so called “drive-by” lawsuits.  These lawsuits are brought by serial plaintiffs who have filed hundreds of cases and are not likely to be real customers seeking to access the goods and services of a targeted business.  Bills introduced in the House and Senate to address this situation may gain more traction with a Republican President and Republican-controlled Congress.  That said, the Trump administration will have many higher priority items to push through Congress, so we doubt that the law will change any time soon.  Because changes to the law are unlikely, we do not foresee a decrease in the number of ADA Title III lawsuits filed in the coming years.

The impact of a Trump administration will most likely be felt at the DOJ, which is responsible for issuing ADA Title III regulations and enforcing the law.  The Trump administration will appoint a new Assistant Attorney General for Civil Rights, as well as the deputies and counselors who will oversee the Civil Rights Division.  The Disability Rights Section (DRS) – which has responsibility for the ADA – is within this Division.

The new Assistant Attorney General for Civil Rights and his or her political appointees will set the regulatory and enforcement agenda for DRS.  On the regulatory front, DOJ is currently working on proposed rules for websites, equipment and furniture, and movie captioning and audio description.  The new leadership will need to review and provide policy direction on those proposed rules, which could result in further delays.  The review will likely affect the content of those rules as well.  One significant question that the DOJ has posed for public comment concerning the proposed website rule is whether there should be less demanding standards for small businesses.  Although DOJ has, in the past, refused to create less stringent rules for small businesses, a Trump administration may be more sympathetic to the plight of small business owners in these upcoming regulations.

It is also possible that a Trump administration would simply abandon all rulemakings currently under development, given the President-elect’s stated aversion to regulations generally.  Such an action would actually be harmful to businesses which need certainty about their obligations, especially when it comes to their websites.  The absence of regulations has created a vacuum that plaintiffs’ attorneys are filling with a tsunami of demand letters and lawsuits that are catching businesses by surprise.  The issuance of clear and sensible rules would put an end to this chaos, and the Trump administration should instead work quickly to issue them.

With respect to enforcement, a Trump administration may be less inclined than the current one to pursue actions that would expand the existing boundaries of the law.  For example, one DOJ enforcement stance that we have found troubling is its aggressive effort to pressure businesses to immediately make their websites and mobile apps accessible in conformance with a privately developed set of accessibility guidelines, even though DOJ has not issued even proposed regulations that would adopt a technical standard for what constitutes an accessible website and set a date for compliance with that standard.  It is possible that a Trump administration would discontinue these enforcement actions until a final rule is issued, although we would be surprised if this actually took place.

For now, all we know is that there likely be some change, and we will be here to report it to you when it happens.