September 22, 2020

Volume X, Number 266

September 21, 2020

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DOJ Disables Titles II and III Website Regulations

The U.S. Department of Justice (DOJ) has placed its once-planned website accessibility regulations under Titles II and III of the Americans with Disabilities Act (ADA) on an inactive list, putting to rest speculation about what the Trump administration may do with respect to the long-promised regulations. As published in the Unified Regulatory Agenda, a semiannual compilation of information about regulations under development by federal agencies, plans that once had the Title II and III regulations coming in Fiscal Years 2017 and 2018, respectively, are now inactive. 

No one knows for sure what relegation to the inactive list means as this is the first time that federal agencies have prioritized their rulemaking agendas by dividing proposed regulations into three categories: (1) the regulatory plan, which highlights regulatory priorities for the coming year; (2) long-term actions, which are regulatory actions not expected within 12 months; and (3) the inactive list, which includes regulations that have not been formally withdrawn, yet seem to have no known place in the agency’s planned rulemaking. 

The placement of the Title II and Title III website accessibility regulations on the inactive list represents a significant departure from past positions of the DOJ, which had these regulations expected in each of the coming fiscal years.  

At first blush, fewer regulations may appear to be a positive development for the business community; however, the lack of official standards ensures that the only guidance for businesses open to the public (so-called “places of public accommodation”) and state and local governments is the developing and generally unfavorable body of case law in this area. For the time being, the only official standard in this realm is for entities covered under Section 508 of the Rehabilitation Act of 1973, federal agencies and federal contractors. Pursuant to the final rule published by the U.S. Architectural and Transportation Barriers Compliance Board (Access Board), these entities’ websites must conform to the Website Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA) standard. As WCAG 2.0 AA is the only official standard that has been adopted regarding websites, this standard is likely the best option for Title II and Title III entities that are striving for compliance with the ADA.

In addition, hopes have been dashed that any regulatory effort may provide relief to the business community in the form of a “safe harbor,” grace period, options for alternatives to website accessibility, or clarity on how strictly a website must comply to avoid liability under the ADA.

As a result, private businesses may want to consider complying with WCAG 2.0 AA at the earliest possible time as the best hope to avoid liability and litigation. In the absence of immediate compliance, steps can be taken to provide accessibility to web-based services through alternative means and to generate a compliance schedule and plan to which the business is prepared to adhere.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VII, Number 212


About this Author

David Raizman, Disability RIghts Practice, Attorney, Ogletree Deakins Law Firm

David Raizman is nationally known for his disability rights practice, specifically for his work under Title III of the Americans with Disabilities Act. In 2012, he was recognized by the Los Angeles Daily Journal as one of the top labor and employment attorneys in California and has been recognized multiple times as a Southern California Super Lawyer.

David works extensively with hotels, sports franchises, stadium and arena owners and operators, amusement parks, theaters, retailers, municipalities and many other clients with operations open to the public to help...

Jennifer S. Rusie, Ogletree Deakins, employment litigation lawyer, common law wrongful termination attorney

Jennifer Rusie represents management in the area of labor and employment law with an emphasis on employment litigation, including cases involving Title VII, the ADAAA, ADEA, FMLA, FLSA, common law wrongful termination, and restrictive covenants. Jennifer also focuses on the area of compliance with disability access laws such as Title III of the ADA. In addition to representing and counseling employers in labor and employment matters, Jennifer represents companies in general litigation matters ranging from Tennessee Consumer Protection Act claims to contract disputes and claims of fraudulent misrepresentation. Jennifer has extensive experience investigating and litigating issues of sexual harassment in the workplace. Additionally, Jennifer’s practice regularly involves advising employers on the topic of payroll cards and ensuring compliance with state and federal regulations in this emerging area of law.