The Department of Justice (DOJ) announced earlier this month that it would begin the process of developing rules relating to “Non-Discrimination on the Basis of Disability: Accessibility of Government Information and Web Services.” State and local”.
The DOJ announcement states that the Americans with Disabilities Act (ADA) states that “no qualified person with a disability shall, because of such disability, be excluded from participation or be denied the benefits of services , programs or activities of a public body”. entity, or be discriminated against by such an entity”, but “many websites of public entities (i.e. state and local governments) do not embed or enable features that allow users with disabilities to access programs, activities, services, or online information. It then informs the public that the DOJ “intends to issue a Notice of Proposed Rulemaking (NPRM) to amend its Title II ADA regulations to provide technical standards to help public entities comply with their existing obligations of make their websites accessible to people with disabilities.”
The NPRM will be released around April 2023, and the public will then have an opportunity to file comments with the DOJ regarding the proposed rule no later than June 2023.
While Title II of the ADA only applies to “public entities”, that’s to saystate and local governments, and this NPRM and eventual regulation will not apply to private companies, this is an important development for private companies for several reasons.
First, the DOJ is the primary federal government agency responsible for enforcing the ADA, and parties with an interest in the web accessibility enforcement—for example, businesses, courts, plaintiff and defense bar associations, and disability public interest groups – have been calling for guidance on website accessibility standards for years. Interested parties did so because when President George HW Bush signed into law the ADA in 1990, lawmakers could not have foreseen the tremendous importance the Internet would play in our daily lives. The ADA does not currently address websites at all. Consequently, courts and regulators have attempted to develop website accessibility standards in the absence of a specific regulatory website or applicable regulations, but their efforts have led to uneven application and interpretations. differing as to how the ADA should apply to websites. Therefore, there are still no guidelines regarding common accessibility barriers, when websites should be accessible, and how to make websites accessible. Various jurisdictions have stepped up potential regulations, only to take them away. In March of this year, the Biden DOJ issued basic guidelines, but those guidelines failed to answer many important questions about website accessibility. Second, we anticipate that the NPRM just announced by the DOJ may lead to a separate NPRM regarding ADA Title III, which applies to private companies. We will continue to monitor these developments. Businesses that wish to prepare for potential regulation and mitigate current litigation risk regarding website accessibility can review and work towards substantial compliance with the Web Content Accessibility Guidelines (“WCAG”). ) 2.1 Level AA, which have become the “gold standard” for website accessibility in the absence of federal government guidelines.
Copyright © 2022, Hunter Andrews Kurth LLP. All rights reserved.National Law Review, Volume XII, Number 227