Title III of the Americans with Disabilities Act (ADA) requires a “place of public accommodation” to ensure its goods and services are equally accessible to individuals with disabilities; Title II imposes similar requirements on public entities. DOJ has taken the position that a website is within the scope of Title III so long as it provides goods and services within one of categories of public accommodations listed in the ADA. That, in turn, would mean that entities maintaining such websites are required to ensure they are accessible.
Ensuring accessibility, however, is not a straightforward task. The ADA was implemented prior to the advent of the internet as we know it today, and its regulations do not address how a place of public accommodation might ensure its website is accessible to individuals with disabilities. Although guidelines such as the Web Content Accessibility Guidelines (WCAG) have been developed, these privately developed standards are not binding law and an entity relying on such guidelines may not necessarily rest easy. While the DOJ believes that the WCAG should be the standard for Web content, due to the lack of clear guidance courts have assessed websites’ accessibility on a case-by-case basis, causing businesses inherent uncertainty as it relates to potential legal exposure.
That uncertainty seemed likely to dissipate when on July 26, 2010, the DOJ published an Advance Notice of Proposed Rulemaking (ANPRM) titled “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.” In its ANPRM, the DOJ announced it was considering revising Title II and III regulations to include specific requirements for making websites accessible to individuals with disabilities.
In the fall of 2015, after reviewing the approximately 400 comments received in response to its ANPRM, the DOJ announced its plan to develop separate rules regarding website accessibility under Title II and Title III. The DOJ intended to publish the Title II Notice of Proposed Rulemaking (NPRM) “early in fiscal year 2016”; the Title III NPRM was expected to be published during fiscal year 2018.
It seems the much-anticipated clarity will have to wait. On April 29, 2016, the DOJ published a Supplemental Advance Notice of Proposed Rulemaking (SANPRM), in which it announced its decision to refine its proposal and seek further public comment. The SANPRM’s title mirrors that of its earlier ANPRM publication, and specifically seeks further comment in regard to the proposed changes to the Title II regulations. The comment period closes August 8, 2016.
With the publication of this SANPRM, the light at the end of the tunnel seems to have faded – at least for now. Places of public accommodation maintaining websites subject to Title III will have to continue to wait on the guidance they have been so desperately seeking.