Hunton Employment & Labor Perspectives

The Department of Justice (DOJ) announced earlier this month that it will begin the rulemaking process related to “Nondiscrimination on the Basis of Disability:  Accessibility of Web Information and Services of State and Local Governments.” 

The DOJ’s announcement states that the Americans with Disabilities Act (ADA) mandates that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity,” but “many websites from public entities (i.e., State and local governments) fail to incorporate or activate features that enable users with disabilities to access the public entity’s programs, activities, services, or information online.”  It then informs the public that the DOJ “intends to publish a Notice of Proposed Rulemaking (NPRM) to amend its Title II ADA regulation to provide technical standards to assist public entities in complying with their existing obligations to make their websites accessible to individuals with disabilities.”

The NPRM will issue in approximately April 2023 and the public will then have an opportunity to file comments with the DOJ regarding the proposed regulations no later than June 2023. 

While Title II of the ADA only applies to “public entities,” i.e., state and local governments, and this NPRM and the eventual regulation will not apply to private businesses, it is an important development for private businesses for a few reasons. 

First, the DOJ is the primary federal government agency responsible for enforcing the ADA, and parties who have an interest in website accessibility enforcement—e.g., businesses, the courts, the plaintiff and defense bars, and disability public interest groups—have been clamoring for guidance related to website accessibility standards for years.  Interested parties have been doing so because when President George H.W. Bush signed the ADA into law in 1990, lawmakers could not have foreseen the significant importance that the internet would play in our daily lives.  The ADA does not currently address websites at all.  Consequently, courts and regulators have tried to develop standards for website accessibility in the absence of specific statutory language regulating website or applicable regulations, but their efforts have led to uneven enforcement and differing interpretations related to how the ADA should apply to websites.  Therefore, there is still no guidance regarding common accessibility barriers, when websites must be accessible, and how to make websites accessible.  Various administrations have ramped up potential regulations, only to withdraw them.  In March of this year, the Biden DOJ issued some basic guidance, but that guidance did not answer many important questions regarding website accessibility.  Second, we anticipate that the NPRM the DOJ just announced may lead to a separate NPRM regarding Title III of the ADA, which applies to private businesses.  We will continue to monitor these developments.  Businesses who want to prepare for a potential regulation, and mitigate current litigation risk as it relates to website accessibility, can review and work to substantially comply with the Web Content Accessibility Guidelines (“WCAG”) 2.1 Level AA, which has become the “gold standard” for website accessibility in the absence of guidance from the federal government.