On December 26, the Department of Justice (DOJ) officially withdrew pending rulemakings that would have clarified exactly how the Americans with Disabilities Act (ADA) applies to web services. In 2010, the DOJ started the rulemaking process to create new regulations for the websites of public accommodations and state and local governments. These "Advance Notices of Proposed Rulemaking" (ANPRMs) have now been withdrawn. For two different, but complementary, perspectives on this news, we recommend Lainey Feingold's excellent blog post, No ADA Web Accessibility Regs? No Excuses and the Seyfarth ADA Title III News & Insights blog post, 2017 Website Accessibility Lawsuit Recap: A Tough Year for Businesses, which summarizes the unprecedented number of website accessibility lawsuits filed in federal and state courts in 2017, and their recommendations for risk mitigation.
Bottom line: does this news substantively change the legal environment around web accessibility? The Department of Justice has long interpreted title III of the ADA to apply to web services, and recent court rulings concerning the accessibility of web content and services have tended to support that online businesses are a public accommodation subject to title III of the ADA. The DOJ clarified in its statement of interest in support of the plaintiffs in the case against Netflix, “The fact that the regulatory process is not yet complete does not support any inference whatsoever that web-based services are not already covered by the ADA, or should not be covered by the ADA.”
The DOJ reiterated this point in a 2014 case, asserting that “the Department has long considered websites to be covered by title III despite the fact that there are no specific technical requirements for websites currently in the regulation or ADA Standards.”
Business owners have certainly noted the extensive attention given to web accessibility recently in the courts and in the media. Any uncertainty created by the lack of new regulations should lead most business owners to take preemptive steps to protect against lawsuits by adopting best practices to make their sites more accessible.
The most cost-effective strategy is to mitigate risk by simply doing the right thing. The W3C’s Web Content Accessibility Guidelines (WCAG) 2.0 are the gold standard for ensuring that websites are fully accessible. These standards are known, well-documented, and can be readily achieved with proper training and usability testing to ensure that websites and apps are accessible to all customers.
One way to mitigate the risk of expensive and time-consuming litigation is to work with nationally respected digital inclusion consultants, such as AFB Consulting, who can help businesses maintain welcoming online environments for customers with vision loss and other disabilities. AFB Consulting's project-specific work, training, and other services enable accessibility across your brands and products, ensuring you meet all standards of compliance.
AFB agrees with the Department of Justice’s previous public statement that “Web accessibility continues to remain a critical component of public entities’ obligation to provide equal access to their programs, services, and activities under the ADA.”