Seyfarth Synopsis: Due process, DOJ’s failure to enact regulations, and whether the ADA covers websites arguments dominated the recent Domino’s Ninth Circuit oral argument.

In the increasing morass of varying state and federal district court opinions in website accessibility cases, we will soon have two additional federal appellate decisions to provide more guidance of precedential value to federal trial courts.  Most recently, on October 12, the Ninth Circuit heard the parties’ oral arguments in Robles v. Domino’s Pizza.  On October 4, the Eleventh Circuit heard oral argument in Gil v. Winn-Dixie.  We attended the Robles argument.

Sitting on the Domino’s Ninth Circuit panel were Ninth Circuit Judges Watford and Owens, and Arizona District Court Judge Zipps.  Judges Watford and Owens actively questioned all parties while Judge Zipps only listened.  The judges seemed to be leaning in Robles’ favor, expressing skepticism at many of Domino’s arguments, especially with respect to the main issue on appeal: Whether the court can apply the ADA to websites of public accommodations without regulatory guidance from the Department of Justice (DOJ).  Below is a summary of the key arguments and judges’ comments:

Primary Jurisdiction/Due Process.  The main issue on appeal is whether U.S. District Judge Otero erred in granting Domino’s motion to dismiss the case on primary jurisdiction and due process grounds.  Robles argued that the lack of specific website accessibility regulations does not eliminate the statutory obligation to comply with the ADA, and that Domino’s is not exempted from the ADA and its implementing regulations because DOJ was working on such regulations at one time.  Robles pointed out that DOJ has terminated the rulemaking process since the District Court ruled.  Robles stated that the court does not need the DOJ to rule on this issue – in fact, that the DOJ said in a recent letter (to Congressman Ted Budd) mentioning this very case that it was not going to act.

Frustration with DOJ’ s Inaction.  Not surprisingly, the DOJ continued to come up numerous times during the Domino’s argument.  Judge Watford stated that all “agree it’s a highly undesirable state for the law to be in” and “it’s DOJ that’s mainly at fault – it should have happened a long time ago.”  Domino’s asked whether the Court could certify the question for the DOJ to answer.  Judge Watford did not believe any mechanism to do so existed.  Judge Owens interjected that the DOJ could have intervened, but did not. “This shows the problem with your primary jurisdiction argument. It’s like a Samuel Beckett play – we’re just waiting and it’s not going to happen.”  Isn’t that an inherent due process problem, Domino’s asked?  “The court’s job is to interpret the law as best it can.”  If the Supreme Court doesn’t like it, it doesn’t like it.

Coverage of Websites by the ADA.  The question of whether the ADA covers websites also came up at several points.  Domino’s took the position that the ADA covers the communication on websites, but not the websites themselves – a position that Judge Owens said was contrary to what Domino’s said in District Court.  Judge Watford pointed out that the DOJ has said the ADA covers websites on numerous occasions.  In response, Domino’s said the DOJ’s latest position on this topic was a footnote in the U.S. Solicitor General’s brief filed in the McGee v. Coca Cola case which did not involve a website.  The footnote simply noted district courts have grappled with the question of whether the ADA applies to goods and services offered over the Internet.  Judge Watford said if that footnote is “all you’ve got, you’re on extremely shaky ground… you don’t have much to stand on there.”

What is an accessible website? Domino’s argued, as a possible explanation for DOJ’s inaction: “there is no such thing as an accessible website, and there never will be.” He cited the plaintiff’s expert’s statement in Winn-Dixie, also cited by the Eleventh Circuit judges in that oral argument, that the expert had never seen a website that complies with the Web Content Accessibility Guidelines (WCAG).  To illustrate the difficulty businesses face in applying the guidelines, Domino’s posited how detailed the alt-text behind a picture of a basketball needs to be to conform to the guidelines – if it has LeBron James’s autograph on it, for example, does the alt-text need to go to that level of detail, or can it just say “basketball.”  He thinks the regulatory effort was stymied because the DOJ couldn’t “wrap its head around” this.

Judge Watford disagreed, “I don’t think it’s as dire as you painted”.  The Judge added, skeptically, “You want us to just throw our hands up and say this is just impossible, there’s no way to figure this out.  I don’t think that’s correct.”  Judge Watford noted any particulars as to what businesses need to do to have an accessible website can be worked out in the remedy stage.  At various points, counsel for Robles and the National Federation of the Blind (NFB), as Amicus, as well as Judge Owens, remarked that the lower court had not decided whether Domino’s website was required to be, and was or was not, accessible – let alone by what standard accessibility should be measured.  Thus, those issues were not before this Court.  Judge Watford asked, since it appears the WCAG is the “only game in town”, “how could compliance with anything else render a website’s content accessible to people with vision disabilities”? (Note that in its oral argument, Winn-Dixie, appealing the district court’s order that the grocer conform its website to the WCAG, argued that such an order constituted “legislating from the bench”, which denies businesses due process.)

Telephonic Access.  At one point, Domino’s counsel stated that that people who could not use the website could call a 1-800 number.  Judge Watford reminded him that banner displaying the number was not on the Domino’s website at the time Robles attempted to access it.  The Judge did not say that the phone number could not provide a lawful alternative to access but said “we can debate whether that would be adequate.”  Amicus Counsel for the NFB expressed skepticism about whether the phone could ever be an adequate substitute, and argued that this was an issue of fact.

The Ninth Circuit will likely issue its order in the next three to twelve months.

Edited by Minh N. Vu.

Seyfarth Synopsis: Not long after a similar Congressional appeal, Senators sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits plaguing businesses.

On Wednesday, September 12, 2018, Senator Chuck Grassley (Iowa) announced that he and Senator Mike Rounds (South Dakota) sent a letter to United States Attorney General Jeff Sessions seeking clarification on whether the Americans with Disabilities Act (ADA) applies to websites. Senators Joni Ernst (Iowa), Thom Tillis (North Carolina), Mike Crapo (Idaho), and John Cornyn (Texas) also joined in the request.

The letter urges the Department of Justice to help resolve uncertainty regarding website accessibility obligations under the ADA because “for the ADA to be effective, it must be clear so that law abiding Americans can faithfully follow the law. Right now it is not clear whether the ADA applies to websites. This leaves businesses and property owners unsure of what standards, if any, govern their online services.”

The letter noted that the DOJ has issued no guidance or regulations to provide clarity, and that conflicting court decisions have created even more confusion, which plaintiffs’ attorneys are “exploiting” for “personal gain”, “sending threatening demand letters and filing hundreds of lawsuits against small and medium-sized businesses across the country – from banks and credit unions to retailers and restaurants”.

The letter references our data, published in our July 17, 2018 blog, that more ADA website accessibility lawsuits were filed in the first half of 2018 than in all of 2017.  It also cites Administrative Office of the U.S. Courts data that show filings of certain ADA cases increasing 521 percent from 2005 to 2017. These statistics show, the Senators write, that this litigious trend will only continue to grow unless the DOJ takes action.

The Senators recognize that businesses would rather spend money serving their disabled customers than “paying money to avoid a shakedown by trial lawyers who do not have the interests of the disabled at heart.”

Noting the DOJ’s December 2017 withdrawal of the website accessibility rulemaking process, in which the DOJ said it was evaluating the need for regulations, the Senators emphasize that lack of clarity only benefits plaintiffs’ lawyers while “clarity in the law will encourage private investment in technology and other measures that will improve conditions for the disabled.”

The Senators close by urging the DOJ to promptly take actions, including filing statements of interest in currently pending litigation, to resolve the current uncertainty, and to brief the Senators’ staff on the DOJ’s intentions on this issue by September 28, 2018.

This letter comes not long after a bi-partisan assembly of 103 Members of Congress wrote a similar letter to the Attorney General in June.  It remains unclear whether this letter will spurn any prompt action from the DOJ.  Given the current Administration’s aversion to increased regulation, it is unlikely that the DOJ will re-start its website accessibility rulemaking any time soon.  And, though the Senators urge the DOJ to take any actions in its power—including filing statements of interest—the DOJ has thus far been unwilling to do so.  Unlike the Obama Administration which weighed in in favor of plaintiffs on the private lawsuits brought against Winn-Dixie, M.I.T. and Harvard University, the Trump Administration declined to file a brief in a website accessibility case last year despite the district court’s invitation. Thus, we continue to wait and see how Attorney General Sessions and the DOJ react to the Senate letter.  In the meantime, we, like the Senators, expect website accessibility lawsuits will continue to be filed at a record pace throughout the United States.

Seyfarth Synopsis: If ADA Title III federal lawsuit numbers continue to be filed at the current pace, 2018’s total will exceed 2017 by 30%, fueled largely by website accessibility lawsuit continued growth.

We have completed our mid-year analysis of the ADA Title III lawsuit numbers and the results are striking.

ADA Title III Lawsuits (All Types)Plaintiffs filed 4965 federal ADA Title III lawsuits in just the first six months of 2018, as compared to 7,663 for all of 2017.  If the filings continue at the same rate, there will be close to 10,000 ADA Title III lawsuits for all of 2018 – a 30% increase over 2017.

[Graph: ADA Title III Lawsuits in Federal Court: 2013-2018: 2013: 2722; 2014: 4436, 63% increase over 2013; 2015: 4789, 8% increase over 2014; 2016: 6601, 37% increase over 2015; 2017: 7663, 16% increase over 2016; 2018: 4965 Federal ADA Title III lawsuits filed through June 2018, 30% Projected Increase over 2017 *Number of projected lawsuits based on current filing rate.]

In addition, for the first six months of 2018, New York (1026 lawsuits) has overtaken Florida (882 lawsuits) for the honor of having the second highest number of ADA Title III lawsuits, with California (2155 lawsuits) retaining its number one position as the most busy jurisdiction for ADA Title III filings.

[Graph: Top 10 States for ADA Title III Federal Lawsuits January – June 2018: CA 2155, NY 1026, FL 882, AZ 87, PA 73, TX 68, GA 65, LA 57, MA 49, NJ 48.]
ADA Title III Lawsuits (Website Accessibility).  Plaintiffs filed more website accessibility lawsuits in federal court for the first six months of 2018 than in all of 2017.  There were at least 1053 of such lawsuits in the first six months of 2018, compared to 814 in all of 2017.  If the filings continue at this rate, there could be more than 2000 website accessibility lawsuits filed in federal court for 2018.

[Graph: Federal Website Accessibility Lawsuits 2017 v. 2018 (First Six Months): 2017: 814; First Half of 2018: 1053.]
The New York federal courts have the most website accessibility lawsuits (630 lawsuits).  The Florida courts lag behind with only 342 lawsuits, and the remaining 10 states have anywhere from 1 to 24 lawsuits apiece.

[Graph: Federal Website Access Lawsuits January – June 2018: At Least 1053 Lawsuits: Ca 5, FL 342, GA 1, IL 6, MA 21, NY 630, OH 4, OR 5, PA 24, TX 7, VA 7, NC 1.]
Website accessibility lawsuits are only partly responsible for the increase in the overall number of ADA Title III lawsuits.  We continue to see many lawsuits about the accessibility of public accommodations physical facilities.  We have recently seen a number of class action lawsuits about hotel shuttle services and online hotel reservations systems.

Our Methodology:  Our overall ADA Title III lawsuit numbers come from the federal court’s docketing system, PACER.  However, because the area of law code that covers ADA Title III cases also includes ADA Title II cases, our research department reviews the complaints to remove those cases from the count.  Our website accessibility lawsuit data comes from searches using key words in the Courthouse New Service database which we then manually analyze.  Both processes result in lists of cases that we know exist, but there may be a few we have missed. In addition, our review did not include any accessibility cases brought in state courts under state law such as California’s Unruh Act that were not removed to federal court.

Seyfarth Synopsis: The World Wide Web Consortium just published an expanded version of the WCAG to add 17 more requirements to address new technologies and other digital barriers for individuals with disabilities.

On June 5, the private body of web accessibility experts called the World Wide Web Consortium (W3C) published its update to the Web Content Accessibility Guidelines 2.0, aptly named the Web Content Accessibility Guidelines (WCAG) Level 2.1.

The WCAG 2.1 is an extension of the WCAG 2.0 which the W3C issued in 2008. In recent years, WCAG 2.0 AA has become the generally-accepted set of technical requirements for making websites, mobile apps, and other digital content accessible to people with disabilities. WCAG 2.0 AA is the legal standard for the primary websites of airline carriers as well as the websites of federal agencies.

Four years in the making, WCAG 2.1 “fills gaps” in WCAG 2.0 by adding 17 additional success criteria to address additional accessibility barriers. The updates are mainly related to mobile devices (to keep up with significant technological changes since 2008), disabilities that affect vision (such as colorblindness, low vision; and criteria addressing text spacing and non-text color contrast), and disabilities that affect cognitive function (such as attention deficit disorder and age-related cognitive decline; and criteria addressing timeouts and animations from interactions for seizures and physical reactions). The W3C designed 2.1 to apply broadly to different web technologies now and in the future, and to be testable with a combination of automated testing and human evaluation. The W3C provides an informative introduction to WCAG here.

According to the W3C:

“Following these guidelines will make content more accessible to a wider range of people with disabilities, including accommodations for blindness and low vision, deafness and hearing loss, limited movement, speech disabilities, photosensitivity, and combinations of these, and some accommodation for learning disabilities and cognitive limitations; but will not address every user need for people with these disabilities. These guidelines address accessibility of web content on desktops, laptops, tablets, and mobile devices. Following these guidelines will also often make Web content more usable to users in general.”

The WCAG Level 2.0 AA has been widely considered the de facto standard for website accessibility in the United States, even though the Department of Justice has not adopted it into its Americans with Disabilities Act (ADA) regulations applicable to public accommodations.  The W3C’s publication of WCAG 2.1 does not change that equation; it merely adds additional elements for companies to address in making their websites accessible. 2.1 builds on 2.0, and will still follow the A, AA, and AAA conformance levels. The few court decisions that have issued an order requiring companies to conform their websites to a standard for accessibility have used WCAG 2.0 AA.  Given the rather incremental changes in 2.1, we expect WCAG 2.1 AA to eventually be the new “de facto” standard, but do not expect courts to require websites that already conform to 2.0 AA to meet all 2.1 AA standards overnight.

Further out on the horizon is the W3C’s Silver initiative, which we hear will reimagine the accessibility guidelines completely.  However, there’s no need to worry about that yet.

Seyfarth Synopsis: Today’s first impression trial verdict finding retailer Winn-Dixie liable under Title III of the ADA for having an inaccessible website suggests that public accommodations should focus on their website accessibility efforts now.

As we reported yesterday, Florida federal District Court Judge Robert Scola last week presided over the first trial in the history of the ADA about an allegedly inaccessible website.  Today, Judge Scola issued a 13-page Verdict and Order finding that grocer Winn-Dixie violated Title III of the ADA by having a website that was not useable by plaintiff Juan Carlos Gil to download coupons, order prescriptions, and find store locations.  Mr. Gil is blind and uses screen reader software to access websites.  Judge Scola ordered injunctive relief, including a draft three-year injunction we have included below, and awarded Mr. Gil his attorneys’ fees and costs.

Although the decision is not binding on any other federal courts or judges – not even in the same judicial district – it is significant for a number of reasons.

First, it is the first decision to hold, after a full trial, that a public accommodation violated Title III of the ADA by having an inaccessible website.  To the extent that businesses are considering whether to settle or litigate these cases, this decision makes the possibility of an adverse verdict much more real.

Second, the draft injunction adopts the Web Content Accessibility Guidelines (WCAG) 2.0 as the accessibility standard that Winn-Dixie must meet in making its website accessible.  WCAG 2.0 AA is a set of guidelines developed by a private group of accessibility experts and has not been adopted as the legal standard for public accommodation websites, although it has been incorporated into many consent decrees, settlement agreements, and is the standard the Department of Justice referenced in the Title II rulemaking process.  The court’s adoption of this set of guidelines further points to WCAG 2.0 AA as the de facto standard for website accessibility.

Third, the court did not consider the $250,000 cost of making the website accessible to be an undue burden.  The court said this cost “pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for the Plenti program.”

Fourth, commenting on an issue causing many businesses concern, the court held Winn-Dixie responsible for the entire website’s lack of accessibility even though parts of the website are operated by third party vendors.  It stated: “[M]any, if not most, of the third party vendors may already be accessible to the disabled and, if not, Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.”

The court issued the following draft injunction, and ordered the parties to confer about the deadlines to be inserted in the blanks.

***

Pursuant to the terms of this Order and Injunction, Winn-Dixie, Inc.:

  1. Shall not, no later than _____(date) _____, deny individuals with disabilities, including the Plaintiff, the opportunity to participate and benefit from the goods, services, facilities, privileges, advantages, and accommodations provided through its website www.winndixie.com. The website must be accessible by individuals with disabilities who use computers, laptops, tablets, and smart phones.
  2. Shall not, no later than _____(date) _____, provide individuals with disabilities, including the Plaintiff, an unequal opportunity to participate and benefit from the goods, services, facilities, privileges, advantages, and accommodations provided through its website www.winndixie.com. The website must be accessible by individuals with disabilities who use computers, laptops, tablets and smart phones.
  3. No later than _____(date) _____, shall adopt and implement a Web Accessibility Policy which ensures that its website conforms with the WCAG 2.0 criteria.
  4. No later than _____(date) _____, shall require any third party vendors who participate on its website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria.
  5. No later than _____(date) _____, shall make publicly available and directly link from the www.winndixie.com homepage, a statement of WinnDixie’s Accessibility Policy to ensure the persons with disabilities have full and equal enjoyment of its website and shall accompany the public policy statement with an accessible means of submitting accessibility questions and problems.
  6. No later than _____(date) _____, and at least once yearly thereafter, shall provide mandatory web accessibility training to all employees who write or develop programs or code for, or who publish final content to, www.winndixie.com on how to conform all web content and services with WCAG 2.0 criteria.
  7. No later than _____(date) _____, and at least once every three months thereafter, shall conduct automated accessibility tests of its website to identify any instances where the website is no longer in conformance with WCAG 2.0.
  8. If the Plaintiff believes the Injunction has been violated, he shall give notice (including reasonable particulars) to the Defendant of such violation. The Defendant shall have 30 days from the notice to investigate and correct any alleged violations. If the Defendant fails to correct the violation, the Plaintiff may then seek relief from the Court.
  9. In light of what the Court has already found to be the Defendant’s sincere and serious intent to make its website accessible to all, this Injunction will expire in three years.

***

In the absence of any regulations setting forth the requirements for a website accessibility program, this injunction, once finalized, will provide a judicially-approved framework for such a program for those public accommodations that want to adopt one.

Edited by Kristina M. Launey.

Seyfarth Synopsis:  The number of federal ADA Title III lawsuits continue to surge, fueled by new plaintiffs, new plaintiffs’ lawyers, and website accessibility claims.

Our 2016 lawsuit count is complete, and the results no less remarkable than prior years.  In 2016, 6,601 ADA Title III lawsuits were filed in federal court — 1,812 more than in 2015. This 37 percent increase continues the upward trend in the number of filings, which we’ve been tracking since 2013.  In 2015, there were 8 percent more Title III lawsuits filed than in 2014.

ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)
ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)

California and Florida continue to be hotbeds of litigation, with 2,468 and 1,663 lawsuits, respectively. New York, Arizona, and Texas hold distant third, fourth, and fifth positions.  Here are the numbers for the top ten states:

  1. CA: 2468
  2. FL: 1663
  3. NY: 543
  4. AZ: 335
  5. TX: 267
  6. GA: 193
  7. UT: 124
  8. PA: 102
  9. MN: 96
  10. CO: 92
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)

The number of cases in Utah jumped from only one in 2015 to 124 in 2016 — due almost entirely to plaintiff Carolyn Ford who filed 105 of those suits.  Other states that experienced significant increases include Arizona, California, Colorado, and Georgia.  Alaska, North Dakota, South Dakota, and Wyoming are the only states that had no ADA Title III lawsuits at all filed in 2016.

What is driving these numbers?  While historically there had been a few predictable plaintiffs and attorneys filing Title III lawsuits, over the past year we’ve seen quite a few newcomers filing (the most common) physical accessibility lawsuits, as well as a recent proliferation of plaintiffs and attorneys filing website accessibility lawsuits.  There were more than 250 lawsuits filed in 2016 about allegedly inaccessible websites and/or mobile apps.   This number does not include the hundreds, if not thousands, of demand letters plaintiffs sent to businesses asserting website accessibility claims.

Plaintiffs who filed more than a hundred lawsuits in 2016 were Theresa Brooke (274), Scott Johnson (258), Howard Cohan (251), Lional Dalton (184), Jon Deutsch (175), Advocates for Individuals with Disabilities LLC/Advocates for Individuals with Disabilities Foundation Incorporated, Advocates for American Disabled Individuals LLC (165), Chris Langer (163), Santiago Abreu (152), Damien Moseley (141), Patricia Kennedy (138), Doug Longhini (114), Andres Gomez (113), and Carolyn Ford (105).  We expect to see fewer suits from Howard Cohan who was the subject of a news expose in late 2016 which showed videos here and here of him not appearing to be limited in his mobility.  Mr. Cohan has filed many hundreds of suits over the years concerning alleged barriers that would affect people who are limited in their mobility.

In 2016, lawmakers in both the Senate and House proposed legislation called the ADA Education and Reform Act designed to, among other things, reduce the number of lawsuits filed by serial plaintiffs by requiring them to give businesses notice of the alleged violations and an opportunity to address them before filing suit.  Those efforts stalled but may gain new momentum with a new administration that is sympathetic to the plight of small businesses and hostile to federal regulation.  There were also state legislative efforts, which will no doubt continue in 2017.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2017.

Seyfarth Synopsis:  DOJ announces that proposed rules for state and local government websites will issue July 2017.

The DOJ announced last week in the federal government’s Unified Agenda that it will be issuing a proposed rule for state and government websites in July 2017.  The Unified Agenda provided no date for the proposed rule for public accommodations websites, however.  As we reported previously in May the DOJ had issued a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM) for the state and local website rulemaking  in which it stated that the results of that rulemaking would “facilitate the creation of an infrastructure for web accessibility that will be very important in the Department’s preparation of the Title III Notice of Proposed Rulemaking on Web site accessibility of public accommodations.”   The SANPRM posed more than 120 questions for public comment, the period for which closed on October 7.

Given the many delays in the state and local government website rulemaking which started in 2010, we have little confidence that a proposed rule will really issue in July 2017.  Furthermore, the projected July 2017 date was likely set before the election which injects additional uncertainly for the reasons we discussed in a prior post.

Edited by Kristina Launey.

Time concept: Hourglass on computer keyboard backgroundSeyfarth Synopsis: Public entities and private businesses have been waiting for years – since 2010 – for the Department of Justice to issue regulations setting a standard for website accessibility.  The DOJ has announced that it is stepping backward rather than moving forward in that process, withdrawing its Notice of Proposed Rulemaking on Title II regulations applicable to public entities, and issuing a Supplemental Notice of Proposed Rulemaking seeking further comments and input.

We’ve been anxiously awaiting the Department of Justice’s (“DOJ”) issuance of Title II public entity website accessibility regulations – as a precursor to Title III regulations that would apply to businesses.  Apparently the wait will continue.  On Friday the DOJ announced that on April 28, 2016, it withdrew its Notice of Proposed Rulemaking (“NPRM”) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities (RIN 1190-AA65).  DOJ had submitted the NPRM to the Office of Management and Budget (“OMB”) for review pursuant to Executive Order 12866 on July 9, 2014.

DOJ also issued a Supplemental Advance Notice of Proposed Rulemaking (“SANPRM”) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  Its stated intent with the SANPRM is to solicit additional public comment on various issues to help DOJ “shape and further its rulemaking efforts,” citing evolutions (availability, less expensive, more widely used) in the internet, accessibility tools and assistive technologies in the six years since DOJ issued its 2010 Advanced Notice of Proposed Rulemaking (“ANPRM”) as the reason for this redux.  DOJ stated its expectation that public comments on the SANPRM “will be more detailed and focused than those received in response to its original 2010 ANPRM.”  As one commentator in the web accessibility community characterized the action: “DOJ: Because the web’s changed in the SIX YEARS we’ve been delaying regulations, we’re going to TOTALLY START OVER!”

The DOJ offered examples of what it seeks in the SANPRM:

  • More specific information relating to the potential application of technical accessibility requirements to the web sites of public entities under title II of ADA.
  • Information on the appropriateness of setting alternative requirements for small public entities.
  • Precise information on the costs and benefits of web accessibility that will aid in its preparation of a regulatory impact analysis.
  • More information about specific benefits, including benefits to persons with particular types of disabilities, and input on how to measure the benefits of web accessibility.
  • More information about the current level of accessibility of public entities’ web sites, including the experiences of people with disabilities accessing public entities’ web sites.
  • Specific data on the costs of web accessibility and suggestions about how to measure those costs.

In addition to the SANPRM, the DOJ stated its intent to conduct research and studies to better understand the benefits and costs of a Web accessibility regulation – as if, after all this work, it may decide a regulation governing web accessibility may cost more than the benefit it would bring?

DOJ concludes its press release on this shocking development by noting that “web accessibility continues to remain a critical component of public entities’ obligation to provide equal access to their programs, services, and activities under the ADA.”

This will no doubt have an effect on the development of Title III regulations as well.

There is more bad news for businesses that thought that they could wait for the Department of Justice (DOJ) to issue specific regulations before making their websites accessible to individuals with disabilities.  Federal Magistrate Judge Robertson in the District of Massachusetts recently denied motions by Harvard and MIT to dismiss or stay website accessibility class action lawsuits, and recommended that the lawsuits move forward to discovery.  The judge found that the existing law and regulations provide a basis for the deaf advocates’ claim that the universities violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on their websites. The judge rejected the universities’ arguments that the court dismiss or stay the case while DOJ works on its proposed rules for website accessibility, finding that the court did not need the agency’s expertise to adjudicate the cases.  The judge did, however, give weight to the DOJ’s interpretation of the ADA expressed in its Statement of Interest filed in the Harvard and MIT lawsuits.

The Magistrate Judge’s recommendation will not be a final order of the court until U.S. District Court Judge Mastroianni adopts it.  Even after adoption, the decision will not be a finding that the universities have violated the law or that they must caption all videos on their websites.  The ruling would simply allow the cases to move forward to discovery.  As Judge Robertson noted, the schools will have an opportunity to assert various defenses later in the case.  For example, Harvard and MIT might show that they provide access to their videos in some alternative, equivalent matter.  They might also seek to establish that providing closed captioning for some or all videos on their websites would constitute an undue burden or fundamentally alter the nature of the goods and services that they offer.

There are many takeaways from Judge Robertson’s 45-page opinion, but we see two very basic, practical points:

  • Judges, at least thus far, have not been receptive to the argument that there is no obligation to make websites accessible until DOJ issues regulations on the subject. In 2015, a federal judge in Pittsburgh also denied a defendant bank’s motion to dismiss or for a stay of a website accessibility case, without any discussion or explanation.
  • Courts seem reluctant to dismiss website accessibility lawsuits at the beginning of the case. This means that the cases will likely continue to discovery and cause defendants to incur potentially substantial costs of defense, even if the defendants ultimately prevails on the merits.

The Harvard and MIT decisions will undoubtedly fuel the continuing explosion of website accessibility cases.  We are working to determine how many such suits have been filed and will report it to you as soon as we have it.

Edited by Kristina M. Launey.

iStock_000018867002_LargeOh, the irony.  Our federal government is filing lawsuits against private businesses and universities for having allegedly inaccessible websites and mobile apps when its own agencies have inaccessible websites.  In April 2014, we reported that the American Council of the Blind (ACB) and three blind federal contractors sued the General Services Administration , alleging GSA’s own website, SAM.gov, is inaccessible and denies certain blind and visually impaired government contractors the ability to register or timely renew their government contracts online.

On Tuesday, November 10, 2015, the plaintiffs announced that the parties had reached a settlement, which requires GSA to make significant changes to SAM.gov to make it more accessible.  The announcement did not reference the Web Content Accessibility Guidelines (WCAG 2.0), even though the Department of Justice has been using this set of guidelines for all of its website settlements with private businesses.

The plaintiffs report that following GSA’s implementation of the agreed-to changes, the website will undergo review by another independent accessibility expert. In addition, the agreement creates a process by which members of the blind community will test and provide feedback on future changes to SAM.gov.

The attorneys for the plaintiffs stated in a press release: “The Internet is part of our daily lives, and being unable to access any website—much less a website that is essential to doing business with the federal government—puts members of the blind community at an economic disadvantage. It is unfortunate that it took the filing of a lawsuit to bring about meaningful change but we thank GSA for working collaboratively with us and our clients to make SAM.gov accessible.”   And, “everyone, including the blind community, deserves access to the Internet, which has become a means for independence, information and commerce.

We are trying to get a copy of the actual agreement and will update this post when we do.