LEGAL
DOJ Issues Guidance on ADA Website Accessibility By Keith Thornburg, Vice President and General Counsel
On March 18 of this year, the U.S. Department of Justice issued guidance clarifying website accessibility and how to ensure compliance with the Americans with Disabilities Act. Enacted in 1990 under Title 42 of the U.S. Code, ADA prohibits discrimination against the disabled in employment, public (government) services, public transportation, public accommodations and services by private entities.
In issuing the guidance, DOJ said it has “consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges or activities offered by public accommodations, including those offered on the web.” (emphasis added).
It is apparent that Congress clearly addressed access and use of physical facilities in 1990. It is not clear, however, if ADA extends to web access. Te strained phrasing in DOJ’s statement is an attempt to stretch the statute to fit.
DOJ Declines to Issue Standards Te DOJ expressly states it does not have a regulation setting a standard for website accessibility. In contrast, the DOJ has issued detailed standards for construction and various public accommodations and commercial facilities.
Te DOJ (attorney general) is required under title 42 USC Section 12186 to issue regulations implementing the ADA and specifically including the standards for “facilities” covered under Section 12182. Te DOJ originally indicated it would issue a regulation to establish a website accessibility standard in 2010, but the DOJ has never done so.
Te guidance suggests referencing standards for government websites, as well has the standards offered by the World Wide Web Consortium — a nongovernment private sector international standards organization that develops and maintains Web Content Accessibility Guidelines standards. Government website accessibility standards are issued by a body called the Access Board established under the Rehabilitation Act of 1973 under Title 29 of the U.S. Code.
Why has DOJ left disabled Americans and businesses in the lurch? Te DOJ’s avoidance of the rulemaking process to define website accessibility: • avoids a legal challenge to a rule to determine whether the ADA even extends to and requires website accessibility
• avoids congressional oversight • avoids the notice and comment process that would require the DOJ to balance interests, which would temper a rule for prudence, cost and effectiveness
• avoids potential litigation following a rulemaking to test whether the ADA extends to all commercial websites or only to commercial websites associated to a business with a brick-and-mortar presence
• avoids rules that clarify application of the ADA, both generally and across judicial circuits, which would reduce litigation and that would eliminate the present policy of supervision by enforcement
The Impact in Missouri and for MBA Members Banks have periodically been solicited to “settle” ADA website accessibility claims by trial attorneys representing “testers” who allege the bank’s website is deficient. Similar to past solicitations, some of our members have shared with us a recent form letter sent to banks by a plaintiff ’s law firm located in Chesterfield.
Eventually a bank or other business will present a favorable fact scenario, and there will be determinative litigation somewhere in Missouri or the 8th U.S. Circuit Court of Appeals.
Te outcome will provide some clarity. However, legal risks associated with the ADA and website accessibility will not be materially reduced unless: • DOJ acts responsibly to issue a standard • Congress enacts clarifying law • a case is accepted and decided by the U.S. Supreme Court that resolves different decisions in the federal district courts
THE MISSOURI BANKER 9
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