On July 20, the Trump administration published its Unified Agenda of Regulatory and Deregulatory Actions, which transferred to an “inactive actions” list the Department of Justice’s (DOJ’s) ongoing project for additional rulemaking involving the potential application of the Americans with Disabilities Act (ADA) to private businesses’ websites.

This is a significant event in the course of the federal government’s messaging on this issue.

In 2010, the DOJ announced that it would be soliciting comments on proposed regulations governing access to websites under the ADA. On a few occasions, however, the DOJ postponed the date on which it anticipated issuing its regulations, delaying guidance that many feel is sorely needed. The DOJ ultimately pushed back the issuance date for the regulations to 2018.

With the project now classified as “inactive,” there is no longer an imminent expectation that the DOJ will provide new guidance regarding what type of private website formatting or accommodations must be provided to users in order to comply with the ADA. In fact, the DOJ’s newly professed lack of interest appears to weigh against an assumption that the ADA applies to websites.

The ADA requires that places of public accommodation ensure equal access to the goods and services they offer to disabled individuals. The law was enacted in 1990, before the widespread use of the internet, and it does not mention websites or provide any guidance or standards for accessing websites. Neither Congress nor the DOJ has amended the ADA or issued regulations interpreting and clarifying the ADA to specifically provide that the statute applies to private websites in the 27 years the law has been in existence.

Yet numerous claims and lawsuits have been brought in recent years arguing that (i) websites that offer goods and services constitute public accommodations that must comply with the ADA's general accessibility mandate and (ii) that visually impaired, hearing impaired, and other disabled individuals are being prevented from accessing all of the information contained on a business’s website (e.g., by containing video content that is not closed-captioned or cannot be accessed by blind individuals). However well-intentioned these actions may be, the fact is that they take advantage of the “gray area” that previously existed in connection with the ADA’s application to private websites.

The Unified Agenda’s transfer of the ADA website policy to “inactive” status suggests that the DOJ is stepping back from regulating private websites via the ADA and/or regulations interpreting and enforcing the ADA. The DOJ has now indicated that it will not be providing official guidance, contrary to the unofficial guidance it previously offered. As such, website owners, particularly those involved in the retail space, may face increased lawsuits as litigants take advantage of this federal vacuum and a lack of clarity from the judiciary.

In addition, defendants must contend with a patchwork of state-based legislation. For example, California courts have held that the state’s Unruh Act applies to private company websites. Given the California legislature’s tendency towards enacting consumer-related laws, it is possible that it will formally amend the Unruh Act (or enact new legislation) to require compliance by private websites with the World Wide Web Consortium Accessibility Guidelines (WCAG 2.0), promulgated by a third party (or some other standard).

It is also possible that the DOJ may, at some point, stop enforcing ADA compliance for websites via informal mechanisms (e.g., publicly disclosed settlements), given the DOJ’s now-professed lack of interest in the area and the lack of clarity as to what the DOJ would require if the ADA did apply to private websites. This issue was examined by the U.S. District Court for the Central District of California in Robles v. Domino’s Pizza, LLC, No. 16-06599 SJO (SPx) (C.D. Cal. March 20, 2017), which held:

Congress has vested the Attorney General with promulgating regulations clarifying how places of public accommodation must meet their statutory obligations of providing access to the public under the comprehensive ADA. Congress has further provided that the DOJ’s mandate with respect to Title III of the ADA is to issue implementing regulations, to render technical assistance explaining the responsibilities of covered individuals and institutions, and to enforce Title III in court. Such regulations and technical assistance are necessary for the Court to determine what obligations a regulated individual or institution must abide by in order to comply with Title III. Moreover, the Court finds the issue of web accessibility obligations to require both expertise and uniformity in administration, as demonstrated by the DOJ’s multi-year campaign to issue a final rule on this subject. The Court concludes by calling on Congress, the Attorney General, and the Department of Justice to take action to set minimum web accessibility standards for the benefit of the disabled community, those subject to Title III, and the judiciary.

(Citations and quotes omitted.) Domino’s Pizza is currently on appeal to the Ninth Circuit Court of Appeals.¹

Now, post-Domino’s Pizza, the DOJ has announced that it does not intend to issue a “final rule” on this subject. As such, while not settled, there is a possibility that new actions to apply the ADA to private websites will falter at the motion-to-dismiss stage and may, in fact, be sanctionable under Rule 11 or state law equivalents.

Several attorneys at Pepper Hamilton, including Charles S. Marion, Jeffrey M. Goldman and Tracey E. Diamond, have worked on many cases involving ADA website compliance issues and have advised clients on best practices to protect retail websites from litigation exposure. We are monitoring this issue and will continue to keep you informed as this area of the law evolves.

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