Don't Be Fooled by DOJ Delays, Your Website Must Be ADA Compliant

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By Casey C. Sullivan, Esq. on July 23, 2015 10:53 AM

Violating the Americans with Disabilities Act is a simple way to end up on the losing end of a lawsuit. Fail to comply with ADA public accommodation requirements and you could find yourself sued for counters that are too high, aisles that are too narrow, and now, even websites that are inaccessible to people with disabilities.

The Department of Justice announced way back in 2010 that it was revising ADA regulations to ensure accessibility and nondiscrimination on the Internet. Five years later, little headway has been made. Don't let that trick you into complacency, however. In the DOJ's view, the ADA already applies to the Internet. Responsible GCs should ensure that their company websites are ADA accessible sooner rather than later.

DOJ Delays Rules, Not Enforcement

Five years ago, the DOJ issued an Advanced Notice of Proposed Rulemaking stating that department was considering revising ADA Title III regulations for the Internet. Public accommodations would have to ensure accessibility to individuals with disabilities for their websites. Implicit in that rulemaking was the assumption that the ADA didn't currently apply to such websites -- an assumption supported by other DOJ statements at the time, according to the law firm Seyfarth Shaw.

That's not the case anymore. Over the past year, the DOJ has taken numerous enforcement actions against governments and businesses that fail to make their websites accessible to those with disabilities. The Department has taken issue with websites for city job listings, public museums, grocery delivery services, and county courts.

ADA Applies, Formal Rules or Not

The DOJ wasn't the only one seeking ADA enforcement on the Internet. The National Association of the Deaf, for example, sued Harvard and MIT for lacking closed captions on their online videos. In a Statement of Interest issued in those cases, the DOJ shifted from its earlier position, saying that the proposed rules are not expected in the immediate future, but the obligation to make websites accessible exists nonetheless, right now. Further, the DOJ said that websites must be made accessible to the public at large, not just actual customers.

How can in-house counsel ensure that their company's Internet offerings are accessible? After all, there are no finalized rules or regulations. There are plenty of hints in the DOJ's recent enforcement actions, however. Over and over again in ADA settlements, the DOJ has required websites to comply with the Web Content Accessibility Guidelines 2.0. The WCAG covers a wide range of accessibility recommendations for websites.

In-house counsel should start studying the standards, lest they find themselves on the wrong side of a DOJ enforcement action, or, more likely, facing litigation from a public interest group.

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