Advanced Notice of Proposed Rulemaking

Seyfarth Synopsis: DOJ’s response to members of Congress about the explosion in website accessibility lawsuits contains some helpful guidance for public accommodations fighting these claims.

As we reported in June, 103 members of the House of Representatives from both parties asked Attorney General Jeff Sessions to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” The letter urged the Department of Justice (DOJ) to “provide guidance and clarity with regard to website accessibility under the … ADA.”

DOJ’s September 25 response did not do what the members asked, but it did provide some helpful guidance and invited Congress to take legislative action to address the exploding website accessibility litigation landscape. DOJ first said it was “evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.” (This is helpful – to at least know this issue has not fallen totally off DOJ’s radar.) It continued:

The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.

Additionally, the 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.

These statements are not surprising, as DOJ (granted, under the previous Administration) has made them on other occasions.  But here’s the part of the letter that is helpful for businesses:

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.

(emphasis added). The fact that public accommodations have “flexibility” in how to comply with the ADA’s effective communication requirement has been lost in the past eight years, even though DOJ made this point in its 2010 Advanced Notice of Proposed Rulemaking (ANPRM) for websites.  In that document, DOJ stated that a 24/7 staffed telephone line could provide a compliant alternative to an accessible website.  The few courts to have considered this argument in the context of an early motion to dismiss have recognized its legitimacy, but have allowed cases to move forward into discovery on this and other issues.  There have been no decisions on the merits addressing the viability of having a 24/7 telephone option in lieu of an accessible website.

The statement that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA” is new and significant.  It is a recognition that a website may be accessible and usable by the blind without being fully compliant with the privately developed Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1.  The statement confirms what some courts have said so far:  That the operative legal question in a website accessibility lawsuit is not whether the website conforms with WCAG, but whether persons with disabilities are able to access to a public accommodation’s goods, services, and benefits through the website, or some alternative fashion.

In response to the members’ concern about the proliferation of website litigation lawsuits, DOJ said:  “Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.”  DOJ is essentially putting the ball back in the Congressional court, where little is likely to happen.

Edited by Kristina M. Launey.

By Minh N. Vu 

Title II Changes Come First: The Department of Justice (DOJ) recently announced a new July 2013 date for issuing a Notice of Proposed Rulemaking (NPRM) to amend its Title II ADA regulations that would address the obligations of state/local governments to make their websites accessible to and usable by individuals with disabilities.  The DOJ stated that the NPRM will “propose the scope of the obligation to provide accessibility when persons with disabilities access public websites, as well as propose the technical standards necessary to comply with the ADA.”

Then Title III: The DOJ also stated that it will issue a separate proposed regulation in December 2013 to address the obligation of public accommodations (entities that do business with the public) to provide accessible websites and the technical standards that they must follow.

Why the Difference?  It is not clear why the DOJ decided to conduct separate rulemakings for state/local governments and public accommodations, especially since there is no apparent reason why DOJ would adopt different technical standards for the websites of state/local governments versus public accommodations.  In light of that, the technical standards adopted for the former should provide a preview of the technical standards that will be adopted for public accommodations.  As we stated in our earlier blog posts, the standard will most likely be some form of the Worldwide Web Consortium’s (WC3) Website Content Accessibility Guidelines (WCAG) version 2.0.

By Minh N. Vu

For more than a decade, courts have struggled with the question of whether the ADA’s coverage of twelve “places of public accommodation” (e.g., places of lodging, entertainment, retailers, restaurants, service establishments) is limited to physical places, or whether they can be virtual.  The answer to this question dictates whether virtual places, such as websites, are covered by Title III of the ADA, and therefore must be accessible to individuals with disabilities.  If accessibility is required, businesses must, among many other things, ensure that audio content is communicated to deaf users in some effective manner (e.g., captioning, transcripts) and that visual content can be read by screen readers used by blind readers.

In 2006, federal District Court Judge Marilyn Patel in San Francisco avoided answering the question directly by holding that Target’s retail website is a covered “place of public accommodation” because there was a “nexus” between the website and Target’s brick and mortar stores.  This week, federal Massachusetts District Court Judge Michael A. Ponsor pushed the envelope one step further in National Association for the Deaf v. Netflix (June 19, 2012) by holding that Netflix’s web only video streaming business, “Watch Instantly,” is a “place of public accommodation” covered under Title III of the ADA. 

The decision is not entirely surprising.  In 1994, the First Circuit held in Carparts Distribution Center v. Automotive Wholesaler’s Association of New England, that the phrase “place of public accommodation” is not limited to physical places.  The Court allowed an ADA Title III claim to proceed against an insurance plan that provided its benefits through the employer and had no physical place of business patronized by customers. 

That said, the extension of this concept to include all websites of public accommodations regardless of whether the business has a physical presence has a much greater impact.  Essentially every public accommodation business in the world that has a website that can be accessed by customers in the United States and its Territories might be covered under Title III of the ADA.  What would happen if the United States and other countries adopted conflicting technical standards for an “accessible” website?  As with many other areas of the ADA (e.g., pool lifts), the lawyers and consultants will benefit greatly from the complicated issues that will arise.  It may be time for Congress to step in to deal with these issues now in a certain and sensible fashion rather than allowing the law to develop in piecemeal fashion in the courts.    

Further complicating matters is the fact that the U.S. Department of Justice (“DOJ”) has yet to issue regulations setting technical standards for accessible public accommodations websites.  Despite the lack of standards, the DOJ has made clear that it expects websites to be “accessible” — whatever this might mean. Most businesses seeking to make their websites accessible to individuals with disabilities have adopted WCAG 2.0, a standard developed by a private group called the Worldwide Web Consortium.  The DOJ has signaled in an Advanced Notice of Proposed Rulemaking for website accessibility standards that it is considering adopting WCAG 2.0 as the legal standard.  However, because making websites comply with this standard can cost millions of dollars, many businesses understandably want a definitive legal standard to be in place before investing that kind of money.  Businesses are increasingly caught between a rock and a hard place:  Adopt a standard that could change before it becomes legally binding, or risk exposure to class action lawsuits that could cost millions of dollars.  The Netflix decision may well tip the scale in favor of adopting WCAG 2.0 now for many businesses with and without physical locations. 

The San Francisco Chronicle also published an interesting article on the Netflix decision.  For more interesting commentary on this decision, see this article from the Cato Institute.