Hunton Employment & Labor Perspectives

The DOJ announced last November that it again was delaying the target date for publishing its proposed website regulations for state and local governments to December 2014, and its proposed website regulations for public accommodations until June 2015.  Next, without further comment, the DOJ failed to make its December 2014 deadline for its state and local government regulations.  Given that the state and local government regulations deadline was missed, and that the DOJ has not yet submitted its public accommodations regulations to the federal Office of Management and Budget for required review and approval, it is virtually certain that the June 2015 deadline for public accommodations regulations will be missed as well.  Bottom line – affected businesses won’t see the DOJ’s new website accessibility regulations anytime soon.

As many of our clients know, however, we have advised for a long time that businesses should nonetheless take steps now to make their websites and mobile applications accessible, before the DOJ regulations issue.  Why?  Because neither the DOJ, disabled-rights advocacy groups, nor private plaintiffs view the lack of regulations as an impediment to commencing investigations, filing enforcement actions, and prosecuting lawsuits, notwithstanding the lack of any law that establishes the technical requirements for website or mobile application accessibility.  As to the DOJ, during the past year, we have seen the following:

• First, in February, 2015 the DOJ announced settlements with the cities of DeKalb, Illinois,  Vero Beach, Florida, Fallon, Nevada and Isle of Palms, South Carolina that included “ensuring that [each City’s] online employment opportunities website and job applications conform with the Web Content Accessibility Guidelines 2.0, which are industry guidelines for making web content accessible.”  A copy of the DOJ’s settlement press release can be located here. 
• Second, in January 2015, the DOJ announced a settlement with the Washington, D.C. Crime and Punishment Museum that included “ensuring that [the Crime Museum’s] website conforms to the Level AA Success Criteria and Conformance Requirements of the Web Content Accessibility Guidelines 2.0.”  A copy of the DOJ’s settlement press release can be located here.
• Third, also in January 2015, the DOJ announced a settlement with Nueces County Texas which included that “the county will assess all existing web content and online services for conformance with industry guidelines—the Web Content Accessibility Guidelines (WCAG) 2.0—for making web content accessible.”  A copy of the DOJ’s settlement press release can be located here. 
• Fourth, in November 2014, the DOJ announced a settlement with Ahold U.S.A. Inc. and Peapod LLC, the owners and operators of www.peapod.com, the Peapod grocery delivery company. Under the settlement, Peapod agreed to ensure that its website and mobile applications conform to the Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA), designate an employee as web accessibility coordinator to report directly to a Peapod, LLC executive, retain an independent website accessibility consultant to annually evaluate the accessibility of the website and its mobile applications, provide mandatory annual training on website accessibility for Peapod’s website content personnel, and other things.  A copy of the DOJ’s settlement press release can be located here. 
• Fifth, in July 2014, the DOJ announced a settlement with the Orange County Clerk of Courts in Florida that requires court records to be accessible to blind people and that will “ensure that the Clerk of Courts’ website is accessible to individuals with disabilities, including blind individuals, in accordance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA, available at http://www.w3.org/TR/WCAG20/.”  A copy of the DOJ’s settlement press release can be located here. 

The combination of these five recent settlements, and the DOJ’s statements in its settlements and press releases, make clear that the DOJ does not view its own inaction in promulgating regulations as an impediment to bringing enforcement actions against public accommodations with websites and mobile applications that it considers inaccessible.  By repeatedly referencing the WCAG 2.0 AA as an “industry guideline” and an “industry standard” in public pronouncements, the DOJ has made it clear that it considers these accessibility guidelines applicable now.  Moreover, as Hunton & Williams partner M. Brett Burns notes, “stocking a trove of public pronouncements surely is purposeful,” because among other things, the DOJ assuredly will cite them in future enforcement actions when responding to arguments that legal requirements were not made known to public accommodations defendants prior to lawsuits being filed against them. 

Under these circumstances, we continue to think the time for businesses to start taking steps to make their websites and mobile applications accessible should be now, and are happy to provide consultant recommendations and explain further how to make this happen.