In what could prove to be a mixed bag for employers, the Department of Justice (DOJ) officially has shelved once-planned website accessibility regulations under Title III of the ADA. The decision should put to rest—for now—speculation that the Trump-era DOJ will enforce Title III’s provisions against companies whose websites are not accessible by screen-reader technology.
Readers of the Nexsen Pruet mid-week memo may recall our previous articles on this topic. We first addressed the general possibility that company websites may be subject to Title III. Broadly speaking, Title III prohibits discrimination by private companies, based on a disability, in places of public accommodation. Lawyers and judges have struggled, however, with applying this pre-internet statute to the internet era. More recently, we noted a groundbreaking trial in which a federal judge held that “places of public accommodation” could include websites. In that case, the judge found that grocer Winn-Dixie’s website was “heavily integrated with Winn-Dixie’s physical store locations.” Consequently, the judge ordered Winn-Dixie to modify its website to comport with the Web Content Accessibility Guidelines (WCAG) 2.0 AA.
The privately run Website Accessibility Initiative created WCAG. If a website meets these guidelines, it will be accessible to the disabled, in particular to the visually impaired who must use screen-reading technology. However, WCAG is not created by statute and it does not carry the force of law. Several years ago, the Obama-era DOJ proposed a set of regulations to change that. The regulations would have given government sanction to the idea that Title III applies to websites run by private companies. They also would have given the DOJ’s official blessing to WCAG.
However, the regulations did not make it through the notice-and-comment period before the Obama Administration ended—leaving many to speculate whether the Trump Administration would continue to push for their adoption. We now know the answer is no. As published in the Unified Regulatory Agenda, the DOJ officially has placed these regulations on the inactive list. Consequently, they will not be adopted in the near future. Employers and the business community have cause to view the DOJ decision positively. After all, fewer regulations generally go hand-in-hand with a business friendly legal climate. Moreover, the lack of formal regulations decreases the likelihood that the DOJ will involve itself on behalf of private plaintiffs bringing suit under Title III.
However, no regulations also means that the business community—and trial courts—do not have any official standards or guidance in this developing area of law. As the Winn-Dixie case demonstrates, courts mostly have been hostile to arguments that Title III does not apply to websites. The proposed regulations at least would have provided some measure of clarity and likely would have included a “safe harbor” provision to allow for voluntary compliance. Consequently, private businesses—especially those with websites tied intrinsically to their physical location—may still want to consider having their sites tested for compliance with WCAG 2.0 AA.
This article appeared in Lexology