web

By Scott Huffstetler and Devin Ricci

Think Americans with Disabilities Act (“ADA”) access litigation is limited to sidewalks, restrooms and physical barriers to the disabled in “brick and mortar” establishments? Think again.

A growing number of lawsuits are being filed against businesses under Title III of the ADA alleging that that the business’s website does not provide adequate accessibility to the visually and/or hearing impaired persons. Typically, the lawsuits involve an individual and a disability advocacy group as plaintiffs who allege and demand that the websites of the defendant companies must comply with certain levels of Web Content Accessibility Guidelines (“WCAG”), model guidelines compiled by the World Wide Web Consortium.

Meanwhile, the Department of Justice has since 2010 delayed issuing specific regulatory guidance directly addressing commercial website accessibility standards. In July 2010, the DOJ issued an “Advanced Notice of Proposed Rulemaking” seeking public input and comments on 19 questions related to potential standards, compliance deadlines, implementation costs and more.  In September 2010, the U.S. Department of Justice, Civil Rights Division issued updated ADA regulations entitled “Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,” but also specifically noted — in introductory information not made part of the regulation — that “[t]he Department intends to engage in additional rulemaking in the near future addressing . . . accessibility of Web sites operated by covered public entities and public accommodations.” 75 FR 56236-01, 56240. More recently, the DOJ has indicated that it plans to issue website accessibility regulations for state and local governments in 2016, but that the Title III regulations would be delayed until 2018. DOJ Statement of Regulatory Priorities, Fall 2015 available here.

Don’t be fooled by the DOJ’s delays, however. Despite the absence of clear regulatory guidance as to what standards may be required, the current enforcement position of the DOJ and of the “gotcha” plaintiffs is to rely on general regulations requirements under the ADA that goods and services be available and delivered to the public in a non-discriminatory manner.