DOJ’s Failure to Provide Effective Guidance on Website Accessibility Requirements Under the ADA Leaves Congress as the Only Option to Solve the Malicious Prosecution Problem | Vide Rome LLP

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Over the past five years, companies with an online presence have been the target of lawsuits accusing them of having websites that are allegedly inaccessible to the blind and hard of hearing in violation of the Americans With Disabilities Act (ADA). The number of such cases has steadily climbed at a rate of 10 per day, with more than 4,000 cases filed in 2021 (quadrupling the number of such cases filed in 2017). The increase is the result of a particular void in the law – the absence of codified achievable standards explaining what is needed to have a certified “accessible” website. Serial plaintiffs’ attorneys have been given an unfair advantage, allowing them to relentlessly pursue nuisance lawsuits that disproportionately affect small and medium-sized businesses with low operating margins.

The targeted companies, which have paid a total of millions of dollars in extorted settlement payments, have been anxiously awaiting the US Department of Justice (DOJ) – as the agency responsible for issuing regulations to apply force and justice. effect of the ADA – uses its regulatory authority to provide clarification as to the series of steps that can be taken to certify the accessibility of a website. Much to their disappointment, on March 18, 2022, the DOJ effectively backed off and, instead of regulating, issued a non-binding sub-regulatory statement called Advice on web accessibility under the Americans With Disabilities Act, which aims to describe how companies can ensure that their websites are accessible. Unfortunately, it does no such thing. The DOJ’s ineffective course makes it all the more important for Congress to step in to curb accessibility lawsuits against predatory websites.

Title III of the ADA prohibits discrimination against persons with disabilities in places of “public accommodation.” The law lists several accommodations (eg, restaurants, hotels) — all physical locations — and requires them to meet certain accessibility standards. Since the ADA predates the Internet, the legislative text imposes no obligation on companies to websites accessible. Nevertheless, the DOJ and some federal courts have extended the ADA to require websites to be accessible to visitors with disabilities. Although this seems like a noble goal, the problem is that there is no regulatory standard against which to measure accessibility. This is in stark contrast to heavily regulated brick-and-mortar businesses where, for example, every retail store owner knows they must provide at least one sales counter accessible to customers in wheelchairs. Homeowners also know that to be accessible, a portion of the countertop surface must be at least 36 inches long and no more than 36 inches high. Owners know this because, in enforcing the provisions of the ADA, the DOJ has published the ADA Accessibility Guidelines (ADAAG), which are legally binding standards for determining whether a facility is accessible for the purpose of the ADA. Importantly, ADAAG compliance acts as a safe harbor for a company being sued for ADA violations. A brick-and-mortar business facing an ADA lawsuit can defeat that lawsuit before trial if an ADA accessibility expert can certify that the premises are ADAAG compliant. The law recognizes, as it should, that plaintiff attorneys cannot disprove undeniable numbers on a tape measure with their own set of alternative facts.

Because the DOJ has never promulgated online accessibility standards, plaintiffs’ attorneys have enjoyed an undeniable (and patently unfair) advantage in ADA website accessibility lawsuits, leading to companies paying millions of dollars in wrongful settlement payments. The typical lawsuit begins with a cut-and-paste boilerplate complaint that takes negligible time to prepare. The cases are designed to force early settlements based on costs and benefits. More than 90% resolve quickly because, in the absence of achievable standards, whether a website is accessible often presents “factual” issues that rule out early dismissal. Indeed, if I had a penny for each client who called me to ask me if he could have his file rejected because his “The website has been certified as ADA compliant,” I would have retired several years ago. Unfortunately, while there is no shortage of accessibility experts who can provide detailed audits refuting a complaint’s often vague claims, in today’s landscape the complainant can avoid dismissal by submitting a report from an accessibility expert. hack claiming to find a handful of obstacles on the website. Faced with the choice between the relatively low cost of settlement and the high cost and uncertain outcome of protracted litigation, most companies choose to pay the ransom even when their website is genuinely accessible. For the average business owner, it is incomprehensible that the current situation could exist. Well Named. Given the lack of clear statutory authority and a DOJ final rule, the ADA’s private website accessibility lawsuits violate due process, and it’s shocking we’ve let this go on too long. long time.

The DOJ is partly responsible for this problem, but it is also the potential source of a solution. After taking certain enforcement actions against website operators and issuing statements declaring that the ADA applies to websites, the DOJ in 2010 initiated a proposed rulemaking process that considered adoption of the ADA. accessibility requirements based on the World Wide Web Consortium’s Web Content Accessibility Guidelines ( WCAG 2.0) Level AA Success Criteria 2.0. However, in early 2017, as part of the Trump administration’s stated goal of “deconstructing the regulatory state”, the DOJ shut down the rule-making process, leaving all companies in e-commerce vulnerable to predatory litigation. The current chaotic landscape ensued.

Despite having had ample opportunity to address the issue, the DOJ failed to advance the ADA’s goal of providing “clear, strong, consistent, and enforceable standards against discrimination in the workplace.” ‘respect for people with disabilities’. Instead of creating a safe harbor, the new Guide reads like a typical ADA Complainant Complaint, vaguely listing several common issues, explaining why accessibility is important, and promising to outline how companies can ensure accessibility. ‘accessibility. But instead of specifying a series of actions that would ensure ADA compliance, the Guide simply points to third-party resources (eg, WCAG 2.0) for information on how to make websites accessible. The DOJ is unaware that these resources have been around for years but have done nothing to stem the tide of abusive litigation. The Guide does not replace what we desperately need: a fixed definition of the safe harbor of an accessible website. In the meantime, companies will continue to pay the price.

Additionally, the guidelines reaffirm the DOJ’s commitment to interpret the ADA in a way that finds no support in the statutory text or history, i.e., by stating that the requirements of the ADA apply to all goods, services, privileges or activities provided by public housing. , including those offered on the web. To the extent that this statement was intended to include only e-commerce businesses, it is inconsistent with the intent of the ADA writers. Congress could easily have said that the ADA applies to “all businesses engaged in interstate commerce” or to all “retail” or “service” operations. But even though it amended the ADA in 2008 (when the internet was already widespread), Congress never expanded the listed categories of public accommodations, which remain expressly limited to physical locations. The reason, perhaps, is that the ADA is not yet conducive to the context of the website. Indeed, it’s telling that after so many years, the DOJ is still unable to articulate the kind of achievable standards for websites that protect brick-and-mortar businesses from abuse.

It is time for Congress to act. In December 2021, the Online Accessibility Act was introduced in the House of Representatives. Unlike the largely unnecessary guidance from the DOJ, the proposed law recognizes that a predictable regulatory environment is essential for businesses. The law would, among other things, officially adopt the WCAG 2.0 AA criteria. More importantly, it would require plaintiffs to first exhaust certain administrative remedies designed to give companies an opportunity to remedy any alleged accessibility barriers before being sued. Any potential plaintiff wishing to bring an action should argue each element of the claim with particularity, including specific barriers to access. While the proposed law isn’t perfect, given the DOJ’s inability to regulate, it’s the last remaining hope of restoring due process and leveling the playing field.

“The DOJ’s Failure to Provide Effective Guidance on Website Accessibility Requirements Under the ADA Leaves Congress as the Only Option to Address the Frivolous Prosecution Problem”, by Martin S. Krezalek was published in the New York Law Review April 28, 2022. Reprinted with permission.

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