December 6, 2022

Volume XII, Number 340


December 05, 2022

Subscribe to Latest Legal News and Analysis

DOJ Delays ADA Regulations For Accessibility Of Private Websites To 2018

As litigation continues to surge, private businesses await clarity on whether access to people with disabilities under Title III is required for websites.

Claims that websites are inaccessible to persons with hearing and visual impairments date back over a decade. These claims used to be few in number, and most were resolved prior to litigation with little publicity. But starting in 2014, such claims surged dramatically, and the pace has only increased in 2015.

Clients in the retail, e-commerce, financial services, technology, and other industries are now, with increasing frequency, receiving threats of class action litigation over allegedly inaccessible websites from disability rights advocacy groups, plaintiffs’ lawyers, and the US Department of Justice (DOJ). In some cases there is not even a threat, just the reality of a federal court complaint. Indeed, in the past six months, more than a dozen Title III class actions have been filed across the country alleging website inaccessibility and, in many cases, related claims of breach of privacy.

Companies welcomed the anticipated clarity of proposed regulations that DOJ promised it would issue in Spring 2016 (in the Americans with Disabilities Act (ADA), Congress authorized DOJ to issue regulations interpreting Titles II and III). But now, just months prior to that target date, DOJ has announced that it will not finalize regulations to explain what constitutes accessible website content for public accommodations in the private/non-government sector until fiscal year 2018 at the earliest. DOJ’s decision to delay for two more years comes at a time when businesses in all industries, along with their engineers, website designers, and other IT professionals and vendors could benefit from concrete guidance and a reasonable time frame for compliance.  

DOJ’s view is that Title III of the ADA, which applies to “places of public accommodation,” requires all private businesses to make their Internet websites accessible to consumers with disabilities, regardless of whether the business operates an actual, physical “place” open to the public. DOJ initiated rulemaking concerning website accessibility in 2010 with an Advanced Notice of Proposed Rulemaking. Since then, however, DOJ has repeatedly set (and pushed back) release dates for the final Notice of Proposed Rulemaking (NPRM) concerning this issue.

DOJ did not explain its previous delays. This time, however, it provided a reason: DOJ wants to issue its web accessibility NPRM applicable to entities subject to Title II of the ADA (government agencies and contractors) before it moves forward on private businesses under Title III. DOJ believes that the Title II rulemaking “will facilitate the creation of an important infrastructure for web accessibility that will be very important” for the Title III web accessibility rulemaking. The Title II NPRM is expected in early 2016.

Meanwhile, DOJ has made it increasingly clear over the last five years that it considers a website “accessible” if it complies with the Level AA standards of the Web Content Accessibility Guidelines (WCAG) 2.0. Notwithstanding its stalled regulations, DOJ has actively enforced that view through investigations, settlements and consent decrees, and court filings. DOJ has also been involved in private litigation over the applicability of WCAG 2.0 Level AA guidelines. In June 2015, for example, DOJ filed statements of interest in two lawsuits alleging that two private universities are required under Title III of the ADA to make online programming accessible to students with disabilities. Thus, there is no indication that DOJ will scale back these efforts between now and 2018.

Nor are advocacy groups or the plaintiffs’ bar retreating from litigation. While there is no binding law from any federal Court of Appeals that supports these claims, DOJ’s delay could encourage these groups to resort to litigation to establish that Title III applies to all websites, and that WCAG 2.0 Level AA is the law, despite DOJ explicitly stating that it will issue standards at a later date.

Advocacy groups like the National Federation of the Blind have had some limited success on this issue,[1] while other courts, including the Ninth Circuit Court of Appeals, have held that a website that is unconnected to any physical place is not subject to Title III.[2] Given all the current litigation and the uncertainty regarding whether there will be standards or guidelines issued by DOJ, it will likely be up to the Supreme Court or Congress to ultimately resolve the dispute.

Meanwhile, businesses and other organizations should consider assessing their websites to determine whether they meet WCAG 2.0 Level AA standards and comply with relevant privacy laws, and should consult with counsel if they receive a demand letter or complaint.

[1] See, e.g., Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 576 (D. Vt. 2015) (holding the website of a web-only business is subject to Title III)

[2] See, e.g., Earll v. eBay, Inc., 599 Fed. App’x 695 (9th Cir. 2015). See also our April 2015 LawFlash “Ninth Circuit Holds That ADA is Applicable Only to “Actual, Physical Place.”

Copyright © 2022 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume V, Number 341

About this Author

Anne Marie Estevez, labor and employment lawyer, Morgan Lewis

Anne Marie Estevez defends clients in complex, class, and collective action employment, Americans with Disabilities Act (ADA), public accessibility, and consumer class action cases in US federal and state court. Fluent in Spanish, she represents a broad range of US and international clients in employment and labor-based cases nationally, from wage and hour to discrimination to trade secrets litigation. Anne Marie also counsels employers nationally in these areas, negotiates high-level executive contracts and terminations, and handles due diligence for complex employment...

Beth Joseph, labor and employment lawyer, Morgan Lewis
Senior Attorney

Beth S. Joseph litigates Americans with Disabilities Act (ADA)-related cases across the United States, emphasizing Title II and III matters. She counsels and conducts training for clients on all aspects of federal and state public accommodations laws, including electronic information technology compliance. She also appears before administrative agencies and interfaces with the US Department of Justice on matters related to Titles II and III. Beth co-authored the 2003–2014 editions of Public Accommodations under the Americans with Disabilities Act: Compliance and...

Douglas Schwarz, Labor, Employment Attorney, Morgan Lewis Law Firm

Douglas T. Schwarz is a trusted advisor to and advocate for employers in all aspects of labor and employment law.  He litigates in court, arbitration, and administrative proceedings; counsels employers on human resources matters; negotiates and drafts executive employment and separation agreements; advises on labor and employment aspects of corporate transactions, both domestic and cross-border; and conducts internal investigations of employee complaints.  Doug also handles ADA Title III and state law matters involving access of persons with disabilities to public...

Christopher Ramsey, Morgan Lewis, labor and employment lawyer
Of Counsel

Christopher K. Ramsey defends employers in wage and hour, employment discrimination, employment contract, labor, and public accommodations proceedings. He represents clients before US federal and state courts, arbitration panels, and administrative agencies. Chris’s litigation practice includes collective and class action lawsuits, multiplaintiff litigation, and individual actions. He also counsels companies and organizations on compliance with federal, state, and local labor and employment laws, including discharge, layoffs, discipline, restrictive covenants, privacy...

David B. Salmons, Morgan Lewis, Constitutional attorney

David B. Salmons is co-chair of the firm's appellate practice and focuses on complex appellate, constitutional, and regulatory matters across a range of legal subject matters. David has argued 14 cases before the US Supreme Court and numerous other cases before other federal appellate courts, federal district courts, and State appellate courts. David’s litigated cases involve cutting-edge issues in the areas of environmental, tax, bankruptcy, commercial, administrative, civil rights, and constitutional law.