DOJ Delays Rulemaking on Website Accessibility

By Alexis Kramer

Nov. 23 — Disappointing advocates for sight-impaired Internet users, the U.S. Department of Justice has delayed for at least two more years regulations explaining how e-commerce websites can comply with the Americans With Disabilities Act.

The DOJ announced Nov. 19 that it will put off until 2018 the release of website accessibility regulations for businesses. The government's delay puts e-commerce website operators in a difficult position: incur arguably unnecessary costs to make their websites more accessible or risk litigation from blind users who claim that changes are legally required now.

State and local governments, however, can expect DOJ to publish a notice of proposed rulemaking (NPRM) in early 2016, according to the agency's statement of regulatory priorities.

Outrage Over Delay

Title III of the ADA, at 42 U.S.C. §12182(a), provides that individuals shall not be discriminated against in places of public accommodation. Places of public accommodation include restaurants, hotels and retail establishments. The DOJ has been considering since 2010 the extent to which the ADA applies to websites.

John Paré, executive director for advocacy and policy at the National Federation of the Blind, expressed frustration over the agency's inaction.

“After five years, which is already an outrageously long time period, the Department of Justice announces a further delay,” Paré told Bloomberg BNA Nov. 23.

“The delay in this regulation suggests that someone in this administration is indifferent to the rights of disabled individuals in having the same economic and educational opportunities as everybody else,” Daniel Goldstein, attorney for the NFB, told Bloomberg BNA Nov. 23.

The NFB recently settled litigation asserting that online document repository Scribd website wasn't accessible to blind individuals in violation of Title III (Nat'l Fed. of the Blind v. Scribd Inc., D. Vt., No. 2:14-cv-00162-wks, settlement entered, 11/17/15). Under the settlement agreement, the parties will collaborate on making Scribd's website accessible to blind users by the end of 2017.

Goldstein, a partner at Brown Goldstein & Levy LLP in Baltimore, Md., said the DOJ's delay will have no impact on current litigation over the issue of website accessibility. That development is mainly a disappointment to businesses, he said, who have been hoping to receive more clarity and guidance on how to ensure their websites comply with the ADA.

Longstanding Rulemaking Process

The Department of Justice released an advance notice of proposed rulemaking in July 2010, indicating that it was considering amending its regulations implementing Titles II and III of the ADA to require website accessibility. The agency solicited and received 440 public comments regarding:

• accessibility standards for websites of covered entities;

• coverage limitations; and

• available resources to make existing websites accessible to disabled individuals.

 

To contact the reporter on this story: Alexis Kramer in Washington at akramer@bna.com

To contact the editor responsible for this story: Thomas O'Toole at totoole@bna.com

The Department of Justice's fall agenda is available at http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html.