As those of you who have followed my thoughts on the state of the website accessibility legal landscape over the years are well aware, businesses in all industries continue to face an onslaught of demand letters and state and federal court lawsuits (often on multiple occasions, at times in the same jurisdiction) based on the concept that a business' website is inaccessible to individuals with disabilities. One of the primary reasons for this unfortunate situation is the lack of regulations or other guidance from the U.S. Department of Justice (DOJ) which withdrew long-pending private sector website accessibility regulations late last year. Finally, after multiple requests this summer from bi-partisan factions of Members Congress, DOJ's Office of Legislative Affairs recently issued a statement clarifying DOJ's current position on website accessibility. Unfortunately, for those hoping that DOJ's word would radically alter the playing field and stem the endless tide of litigations, the substance of DOJ's response makes that highly unlikely.
DOJ's long-awaited commentary makes two key points:
- DOJ continues to take the position that the ADA applies to public accommodations' websites, explaining that this interpretation is consistent with the ADA's overarching civil rights obligations; and
- Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in determining how to comply with the ADA's general requirements of nondiscrimination and effective communication.
This line of reasoning is similar to that adopted in judicial decisions holding that while the ADA's overarching civil rights obligations apply to websites, it would be inappropriate to specifically require compliance with WCAG 2.0/2.1, without the WCAG having been officially adopted by the government as a required standard. Of course, as those cases note, DOJ's position begs the question, if a business has to make the goods and services offered on its website accessible to individuals with disabilities how else can it provide for "full and equal enjoyment" and/or "effective communication" if the business does not otherwise offer a website in substantial conformance with WCAG 2.0/2.1. Indeed, DOJ's views on this issue stops far from providing businesses with an ironclad defense. While DOJ explains that public accommodations have "flexibility" in determining how to comply with the ADA's requirements it also cautions that, "...noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA." (emphasis added) By way of example, a select number of cases have contemplated the validity of offering telephone service as an alternative to an accessible website (something DOJ had also previously considered during the since abandoned rulemaking process), with several courts expressing doubt that the availability, speed, and thoroughness of such a telephone service could ever fully equal that of the independently usable accessible website. With that in mind, any employer looking to establish that it provides a viable alternative to an accessible website would have to be prepared to engage in a significant amount of litigation to prove the viability/accessibility of its alternative offering.
In concluding its response, DOJ seemingly passes the onus for resolving these issues back onto Congress, noting, "Given Congress' ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts [to address the risk of litigation on covered entities]." Of course, given the number of higher profile matter currently confronting both DOJ and Congress, it would not be surprising if promulgating new website accessibility legislation/regulation will not be high on their lists.
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