On July 20, the Trump Administration posted its first Unified Agenda of Regulatory and Deregulatory Actions. For the first time, the Agenda included a list of “inactive” actions to notify the public of regulations “still being reviewed or considered.” The list of 109 “inactive” actions includes the DOJ’s web accessibility rulemakings under Title II (local and state governments) and Title III (places of public accommodation) of the Americans with Disabilities Act (“ADA”).
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 Title III of the ADA encompasses online content as places of public accommodation and officially put digital accessibility on the private sector’s radar. However, the DOJ’s efforts to promulgate formal regulations to that effect have continuously stalled, and the DOJ instead has used enforcement actions and settlement agreements to communicate its position to Title III entities. The lack of legislative and administrative action on web accessibility also has contributed to the circuit split on whether websites of private entities are subject to the ADA. Private litigants and advocacy groups have taken, and continue to take action to ensure that interactions with the public, including through websites and mobile applications, are accessible to people with disabilities.
Classification of the web accessibility rulemaking as “inactive” marks the continuation of a prolonged period in which business entities have faced a lack of clear guidance from the DOJ on the proper application of the ADA to websites. It also signals that businesses should continue to be prepared to defend against civil action, as advocacy groups and plaintiffs’ firms will likely work to fill the void left by the DOJ. Additionally, many states have anti-disability discrimination laws that mirror, or incorporate by reference, the ADA. Now that the DOJ seems to have backed away, we may see an increase in state Attorneys General acting to enforce such state laws to address the web accessibility issue.
Public accommodations are advised to stay abreast of the legal issues and practical considerations involved in managing risk in this evolving and increasingly litigious climate.