Website Accessibility: Department of Justice’s Filings in Lawsuits Give Warnings

by Sherman & Howard L.L.C.

For many years, the U.S. Department of Justice, an enforcer of the accessibility provisions (Title III) of the Americans with Disabilities Act, applicable to public accommodations, has dragged its feet on promulgating regulations on website accessibility. Starting in the Fall of 2010, when DOJ issued an Advanced Notice of Proposed Rulemaking (ANPRM), and thereafter, DOJ has expressed its intention to (a) issue proposed regulations on the subject, (b) receive public comments on the proposed regulations, (c) issue final rules on the topic after the public comments, and (d) give public accommodations time after the final rules are issued to bring their websites into compliance with any specific technical accessibility standards in the final rules. Technical accessibility standards could be, for instance, some or all of those found in the “Level AA Success Criteria of the Web Content Accessibility Guidelines 2.0,” the voluntary guidelines issued by the Worldwide Web Consortium in December 2008. See generally A parallel process for promulgating regulations for state and local governmental agencies under Title II of the ADA has also moved at a glacial pace.

Most importantly, DOJ has made statements in the past leading public accommodations to believe that their websites might not have to be accessible so long as alternative equivalent means are made available for the disabled to have access to the goods and services provided on the website. The DOJ has offered as an example a department store with a website providing non-disabled customers with access to their credit accounts 24/7, possibly meeting its ADA obligations by offering vision-impaired customers with access to the same information via telephone, from a customer service representative, on the same 24/7 basis.

Almost five years after the ANPRM, there still are no regulations or rules, proposed or final. (A proposed regulation on web accessibility is now scheduled for publication next Spring, but we’ve been promised that before.) In other words, at present, there are no formal rules or regulations mandating that public accommodations’ or public agencies’ websites be accessible to the vision and hearing disabled. This void, in combination with DOJ’s past comments about “accessible alternatives,” continues to tantalize some into imagining that the federal government will not require web accessibility when it eventually reaches the question in the regulatory process.

DOJ’s true sentiments on the subject have now been revealed, however. In two consolidated lawsuits, DOJ recently filed formal Statements of Interest, announcing that — even without any regulations or rules — Title III of the ADA and Section 504 of the Rehabilitation Act already require that public accommodations’ websites be accessible to the disabled. National Association of the Deaf v. Harvard College, Civil Action No. 3:15-cv-30023-MGM (D. Mass. June 25, 2015); National Association of the Deaf v. Mass. Inst. of Tech., Civil Action No. 3:15-cv-30024-MGM (D. Mass. June 25, 2015). As explained below, DOJ’s filings contain a number of surprising pronouncements.

In the two cases, the NAD complained that Harvard and MIT had failed to caption all of the videos posted on their websites. The cases do not relate to those videos that enrolled students are required to view as part of their course of study, but rather, videos of speeches given at the universities, campus events, and lectures posted by the faculty. These videos included, for example, campus talks by President Obama and Bill Gates; educational videos made by MIT students for use by K-12 students; “self-help” talks; and regular podcasts such as the “HBR IdeaCast” by the Harvard Business Review. Both universities had boasted that their websites’ content was available free to anyone with an Internet connection.

The schools moved to dismiss the actions on the grounds that website accessibility is not required by federal law, and alternatively, urged the Court to stay their cases until the DOJ issues the final regulations specifying what exactly the law requires of public accommodation websites. The DOJ filed its Statements of Interest in opposition to the universities’ contentions. The striking positions revealed in the Statements of Interest include the following:

  • DOJ took the position that the claims should not be dismissed because website accessibility is already mandated by federal law. “Both the ADA and Section 504 currently obligate [public accommodations] to provide effective communication to ensure equal access to its online programming services, and resolution of Plaintiffs’ claim involves a straightforward application of longstanding statutory and regulatory requirements. For more than two decades, federal courts have resolved effective communication claims brought under the ADA and Section 504 in a wide range of contexts, including claims alleging unequal access to goods, benefits and services provided through websites or other electronic media.”
  • DOJ took the firm position that public accommodations are obligated to make websites accessible right now, even though no proposed or final regulations or rules exist. In both of the Statements of Interest, DOJ casually dismissed its 2010 ANPRM, characterizing it as merely seeking “to explore whether rulemaking would be helpful in providing guidance as to how covered entities could meet their pre-existing obligations to make their websites accessible.” (Emphasis added.) This statement conflicts with DOJ’s past pronouncements that public accommodations with inaccessible websites might still comply with the ADA by providing equal access to its goods and services for the disabled through alternative means (e.g., the 24/7 customer service representative by telephone).
  • Surprisingly, DOJ contended that every video on the universities’ websites must be accessible to the disabled, even those that are not closely related to the universities’ core business of educating enrolled students. For example, DOJ said the schools must make their “online programming” accessible, while defining “online programming” to include free online videos and audio files that are not courses or educational lectures, but “topics of general interest.”
  • Perhaps most remarkably, DOJ further declared that a public accommodation has an obligation to ensure that the content of its videos is accessible to every person with a disability in the public at large, not just individuals who are customers or potential customers. DOJ’s full explanation was the terse assertion that the federal disability discrimination laws apply “to qualified individuals with disabilities, and is not limited to students with disabilities.”
  • Ironically, DOJ used its own delay in promulgating regulations on website accessibility as a justification for denying the universities’ motions to stay the proceedings until the final rules are implemented. “[T]he scope and timing of any final rule on web accessibility is speculative and far from imminent; although the title III proposed rule. . . is currently scheduled for a Spring 2016 publication, there is no scheduled date for publication of a final rule.” DOJ also confessed that the proposed rule on web accessibility for state and local agencies under Title II was to have been published last Spring, but still has not happened.

Any organization subject to disability access laws – such as a public accommodation or a state or local agency – has been given clear notice by these Statements of Interest that they cannot safely rely on DOJ’s past comments about alternative means of access to goods and services in lieu of accessible websites. Indeed, under DOJ’s view of the law, website accessibility must be provided for all posted material of any kind for all individuals with Internet access to the website.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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