The U.S. Department of Justice (DOJ) has published its Fall 2015 Statement of Regulatory Priorities and announced that its much-anticipated rulemaking on web accessibility under the Americans with Disabilities Act (ADA) will be further delayed until fiscal year 2018. The November 19, 2015, announcement marks the continuation of an already prolonged period in which business entities have faced a lack of clear guidance from the DOJ, while simultaneously defending against governmental enforcement actions and civil actions by advocacy groups.
Businesses, including banks and financial services providers, have been awaiting a web accessibility rule since the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) on the topic in 2010. The 2010 ANPRM stated the DOJ’s position that the ADA applies to businesses offering goods and services to the public via the digital channel and officially put digital accessibility on the private sector’s radar. But the rule and accompanying technical standards have yet to be published.
Nevertheless, the delay in rulemaking has not translated to a delay in enforcement. The DOJ has repeatedly taken the position in litigation, as recently as this summer, that the obligation to make websites accessible is a “current” obligation under the ADA. And the government has made it clear through settlement agreements with business entities that compliance with the ADA means meeting, at a minimum, the WCAG 2.0 AA web and mobile content accessibility guidelines issued by the World Wide Web Consortium. Additionally, advocacy groups continue to file lawsuits against entities with ADA obligations, and plaintiffs’ attorneys are issuing demand letters to business entities with regularity.
As we discussed in a recent webinar, “Digital Accessibility: The Future Has Arrived,” it is clear that businesses should not wait for the DOJ to publish a final rule before taking steps to make their websites and mobile applications accessible to individuals with disabilities. Attorneys at Ballard Spahr regularly assist clients to identify strategies and best practices to position themselves to defend against ADA claims.
