ADA and Online (Posted March 5, 2018)
The growth of digital media has caused a barrage of confusion and concern about how to apply the Americans with Disabilities Act (ADA). The ADA was first adopted in 1990, providing legislation to guarantee equal access for disabled individuals. When adopted, concerns were primarily focused on topics such as accessing buildings or providing job opportunities
With the exponential expansion of the digital world, a whole new infrastructure has arisen for Americans with disabilities to navigate. Keeping technology ADA-accessible has created some serious problems for organizations who don’t understand what an accessible digital world means and also have had trouble keeping up with the fast-paced changes of web innovation and technology.
Litigation surrounding ADA claims regarding jobs or physical access have been common since the ADA was passed. However, today lawsuits are increasingly pushing into the digital realm, with the majority of lawsuits concerning the inability of the visually-impaired to access websites and on-line services through screen readers. In 2017, plaintiffs filed 814 federal lawsuits citing inaccessible websites under the ADA. Of the 814 federal cases, New York and Florida led the way with more than 335 and 325 cases, respectively. Federal courts in Arizona (6), California (9), Georgia (9), Illinois (10), Massachusetts (15), New Hampshire (2), Michigan (1), New Jersey (4), Ohio (8), Pennsylvania (58), Puerto Rico (1), Texas (7), and Virginia (24) also had their share of website accessibility lawsuits.
The first trial in a website accessibility lawsuit took place in 2017. Florida U.S. District Judge Scola presided over this bench trial and concluded that grocer Winn Dixie had violated Title III of the ADA by having an inaccessible website. Judge Scola also found that the $250,000 cost to remediate Winn Dixie’s website was not an “undue burden” and ordered Winn Dixie to make its website conform with the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA).
There are currently no established federal guidelines for how to make a websites accessible to disabled individuals. The Obama administration recommended that websites adopt the Web Content Accessibility Guidelines (WCAG), developed by the World Wide Web Consortium (W3C), but it did not adopt the rules as a formalized regulation. The Department of Justice’s (DOJ) rulemaking to create new website accessibility regulations is now officially dead.
According to the article, “DOJ Places Website Rulemaking on the ‘Inactive’ List,” posted on the Department of Justice website in July 2017, the Trump Administration’s first Unified Agenda revealed that the DOJ has placed web accessibility, medical equipment, and furniture rulemakings (under Title II and III of the ADA) on its Inactive List.The first Agenda the Trump Administration issued, which went online July 20, 2017, contained some very noteworthy changes from the last such Agenda, issued by the Obama Administration.
For the first time, the Agenda breaks down all agency regulatory actions into three categories: active, long-term, or inactive. Only the active and long-term matters receive a description and projected deadlines.
The Agenda places the Department of Justice’s rulemakings under Titles II and III of the ADA for websites, medical equipment, and furniture of public accommodations and state and local governments on this 2017 Inactive Actions list, with no further information. Thus, as it stands there will be no regulations about public accommodations or state and local government websites for the foreseeable future.
In the absence of website regulations, the courts are filling the void with a patchwork of decisions that often conflict with one another. The uncertain legal landscape has fueled more lawsuits and demand letters filed and sent on behalf of individuals with disabilities alleging that the websites of thousands of public accommodations are not accessible.
The placement of the website and all other pending ADA Title III rulemaking activities (medical equipment and furniture) on the Inactive list is part of the Administration’s larger effort to reduce the number of regulations in development.
The lack of clear rules will only lead to more litigation and inconsistent judicially-made law. In fact, it appears that the DOJ will not be issuing any new regulations under Title III of the ADA about any subject, according to the agency’s December 26 announcement in the Federal Register repealing all pending ADA Title III rulemakings.
While the current administration’s DOJ is not likely to push the website accessibility agenda, its inaction will not stop the lawsuits. Only an amendment to the ADA can do that. Thus, the best risk mitigation effort for covered entities is still to make their websites accessible as soon as possible, with the assistance of ADA Title III legal counsel experienced in website accessibility issues and reputable digital accessibility consultants.
The Trump administration has since formally deprioritized the issue, saying that the Department of Justice (DOJ) would be “evaluating whether promulgating regulations about the accessibility of web information and services is necessary and appropriate.”
Many businesses have waited to take formal action to make their web services accessible to disabled users in hopes that formal rules would be put forth from the DOJ. The DOJ’s decision not to issue these guidelines has reignited some conversation among attorneys as to the importance of formal guidelines to begin with.
The issue is more complicated because of the way that supply chains around websites work. Retailers covered by the ADA often generate their web content through third-party developers, groups that may not be subject to the same regulatory requirements in developing their product. That could leave customers with little leverage to pressure third-party developers to create accessible technology for them.
The unlikely hope is that businesses will realize they need to take action on their websites and digital properties even though it doesn’t appear that there are going to be any specific regulations to come out soon.The truth is that technologists and web developers that fail to make their content accessible could lose out on a potential consumer base to a competitor with accessible content. Those of us who are blind or visually-impaired should contact our legislators and make our displeasure known concerning the delay in formalizing ADA rules for website accessibility.