DOJ Withdraws ADA Rulemaking Process

by: David Titmus

The Department of Justice late last month announced that it has withdrawn its pending rulemaking and technical guidance for accessible websites under Title III of the Americans with Disabilities Act (ADA) – a decision that is likely to cause continued uncertainty for businesses, retailers, and owners and operators of public websites as to what, if any, benchmarks they must meet to comply with ADA requirements.

The lack of formal rulemaking on the topic will continue to place responsibility on the courts to interpret the law on their own.

“Rescinding this guidance demonstrates a reprehensible disregard for the rights of people with disabilities on the part of the Department of Justice,” said Susan Mizner, disability counsel with the American Civil Liberties Union. “People with disabilities deserve the same opportunity to live and work in the mainstream of community life.

“Withdrawing this guidance does not change the legal responsibilities of state and local governments. States must still comply with the ADA, and must still promote integrated employment for people with disabilities.”

Title III prohibits discrimination on the basis of disability in places of public accommodation — businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day-care facilities, recreation facilities, and doctors’ offices. Title III also requires newly constructed or altered places of public accommodation and commercial facilities to comply with the ADA standards.

Businesses and website owners have argued that a spate of court decisions have created “significant confusion” in how websites fall under Title III’s reach and, specifically, the steps that businesses must take to ensure their online presence meets accessibility requirements.

The DOJ’s decision to withdraw guidance follows its action last summer to place the Title III regulations on the “inactive list” and puts an end to its long-delayed efforts that began with it accepting comments on proposed regulations governing ADA website accessibility in 2010.

“The department is evaluating whether promulgating regulations about the accessibility of web information and services is necessary and appropriate,” the DOJ stated. “Such an evaluation will be informed by additional review of data and further analysis. The department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”

The DOJ said it might revisit the subject in the future.