When we last discussed the application of Title III of the Americans with Disabilities Act (ADA) to websites (see our April 2015 post), the US Department of Justice (DOJ) appeared primed to propose the Web Content Accessibility Guidelines (WCAG) 2.0, Level AA as the standard required for public accommodations in the private/non-government sector. Then, in late 2015, DOJ announced that it would not finalize regulations to explain what constitutes accessible website content for public accommodations in the private/non-government sector under Title III until fiscal year 2018 at the earliest. Recent DOJ developments now bring into question this 2018 target.
As explained in our December 2015 LawFlash, “DOJ Delays ADA Regulations for the Accessibility of Private Websites to 2018,” the rationale for pushing back the Title III regulations was DOJ’s desire to move forward with its rulemaking for the corresponding website accessibility guidelines for government agencies and contractors under Title II of the ADA. DOJ explained that the Title II rulemaking would “facilitate the creation of an important infrastructure for web accessibility that will be very important” for the Title III web accessibility rulemaking. At the time, the Title II guidelines were expected to be finalized in the summer of 2016.
Instead, on April 29, the DOJ withdrew its 2010 Advance Notice of Proposed Rulemaking (ANPRM) on the issue and issued a Supplemental Advance Notice of Proposed Rulemaking (SANPRM). In the SANPRM, DOJ is seeking additional public comment on questions including the following:
- What is the appropriate scope of web content to be subject to Title II (including whether mobile sites and applications should be covered)?
- What are the appropriate technical standards to implement (i.e., WCAG 2.0 or another standard)?
- What is an appropriate timeline for compliance after the effective date of the regulations?
- Should the DOJ consider proposing alternate conformance levels, compliance date requirements, or other methods to minimize any significant economic impact on small public entities?
- Should the DOJ adopt certain coverage limitations or exceptions in its proposed regulations, particularly in connection with any existing web content as of the effective date of the regulations; web content posted by third parties; or web content of other websites linked from the public entities’ sites?
The public comment period for the SANPRM remains open until August 8, 2016. For a more detailed look at some of the questions raised by the SANPRM, read the LawFlash authored by Morgan Lewis partners Anne Marie Estevez and Doug Schwarz, “DOJ Clicks ‘Refresh’ on Proposed Title II Website Accessibility Regulations.”
With the delay of the Title II guidelines and the preference of the DOJ to resolve those guidelines prior to taking on the Title III guidelines, a corresponding delay to the Title III guidelines would not be surprising. This is particularly concerning as the parties interested in bringing website accessibility suits against retail, e-commerce, financial services, real estate, technology, and other companies have so far not been deterred by the DOJ delays.
Ultimately, DOJ acknowledges that adopting web accessibility standards would provide clarity to entities about how to make the services, programs, and activities they offer the public through their websites accessible, but that the changing technological landscape justifies further efforts prior to finalizing the applicable regulations. Meanwhile, it remains important for businesses and other organizations to consider assessing their websites to determine whether they meet WCAG 2.0 Level AA standards and comply with relevant privacy laws, and to consult with counsel if they receive a demand letter or complaint.
If you have specific questions regarding compliance and risks under Titles II or III, consult one of our ADA Title II, III & State Accessibility Law lawyers. The team has experience in accessibility litigation and compliance counseling, including Titles II and III accessibility issues in technology.
We will continue to follow this issue as it develops.