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.

(Photo) WebsiteBy Minh N. Vu

What a difference five years makes. In September 2010, the Justice Department (DOJ) announced in an Advanced Notice of Proposed Rulemaking (ANPRM) that it would issue new regulations under Title III of the ADA to address the accessibility of public accommodations websites. At that time, it made a number of statements that reasonably led public accommodations to conclude that their websites did not necessarily have to be accessible as long as the public accommodation offered an equivalent alternative way to access the goods and services that were provided on the website. The DOJ’s statements also led public accommodations to believe that once DOJ issues a final regulation, they would have time to make their websites comply with the technical accessibility standard DOJ adopts in that regulation.

DOJ has now shifted positions, presenting its revised viewpoint in Statements of Interest it filed in two lawsuits originally brought by the National Association of the Deaf (NAD) against two universities about the alleged inaccessibility of videos on their websites. See here and here.

What DOJ said in 2010.

In the 2010 ANPRM, DOJ stated that “covered entities with inaccessible websites may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their website. In order for an entity to meet its legal obligation under the ADA, an entity’s alternative must provide an equal degree of access in terms of hours of operations and range of information, options, and services available. For example, a department store that has an inaccessible website that allows customers to access their credit accounts 24 hours a day, 7 days a week in order to review their statements and make payments would need to provide access to the same information and provide the same payment options in its accessible alternative.”

DOJ also asked the public to comment on the following questions: (1) “Are the proposed effective dates for the regulations reasonable or should the Department adopt shorter or longer periods for compliance?” (2) “Should the Department adopt a safe harbor for such [web] content so long as it is not updated or modified?” (3) “Should the Department´s regulation initially apply to entities of a certain size (e.g., entities with 15 or more employees or earning a certain amount of revenue) or certain categories of entities (e.g., retail websites)?” Particularly relevant to the NAD lawsuits, DOJ specifically asked the public to comment on whether requiring videos on websites to have captioning would reduce the number of videos that public accommodations would make available, to the detriment of the public. (“[W]ould the costs of a requirement to provide captioning to videos cause covered entities to provide fewer videos on their websites?”).

What the DOJ is saying now. Continue Reading DOJ Shifts Position on Web Access: Stating In Court Filings That Public Accommodations Have a "Pre-Existing" Obligation to Make Websites Accessible