DOJ Response May Increase Litigation over Web Accessibility

In response to the deluge of demand letters and lawsuits website owners are facing for allegations that their websites violate the American Disabilities Act (ADA), 103 bipartisan members of the House wrote to Jeff Sessions claiming that the lack of clear rules for website accessibility standards violates basic due process, and urged the DOJ to “provide guidance and clarity with regard to website accessibility under the … ADA.”

The DOJ did eventually responded with a letter.

Did they offer any clarity?

No.

Did they do the opposite?

Yes.

The Good: The letter reinforced two important points that it has stated before

“The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 year ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.”

So the ADA applies to website. We knew that, but good for everyone to hear it again.

“Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements

And just because the DOJ still hasn’t done its job to specify the regulation, you can still violate the ADA’s requirements…. even though they have not been defined. Really? This just fuels the due-process argument.

The Bad: Rather than provide clarity, it introduces new obscurity

“Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication.”

So this is basically stating that since they haven’t done their jobs, which is precisely to provide the specific technical requirements requested through rulemaking, but in what may have been intended to help businesses, they introduced this clause about flexibility.

When rules are clear, you have fewer lawsuits.

When they are vague you have more.

Website owners may think this will provide some degree of cover. But when there is grey area, that only makes a case longer, more messy, and more expensive.

“Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”

This is clarifying that failure to meet WCAG 2.0 AA does not necessarily trigger a violation of the ADA. So this will take away the common tactic to use a failed WCAG website audit as the basis for a claim. This will likely force plaintiffs’ attorneys to modify their approach, and focus simply on how their client is unable to access and use the goods, services, or activities available on the website. That’s not going to be hard to do, so no win here for business really.

The Ugly : Blame Congress

So the insult upon injury is that rather than fulfill their duty to clarify these rules, they turned around and blamed it all on Congress.

“Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.”

So if this move appeared to be a gift to businesses to protect them from these drive-by lawsuits, I think it will do the opposite. By shirking their duties to clarify, and instead introducing new vagueness, the DOJ instead provided another gift to the powerful Plaintiffs Attorney Bar Association.

Nice job Jeff.

#DOJfail