The U.S. Department of Justice (DOJ) has published its Fall 2015 Statement of Regulatory Priorities and announced that its much-anticipated rulemaking on web accessibility under the Americans with Disabilities Act (ADA) will be further delayed until fiscal year 2018. The November 19, 2015, announcement marks the continuation of an already prolonged period in which business entities have faced a lack of clear guidance from the DOJ, while simultaneously defending against governmental enforcement actions and civil actions by advocacy groups.

Businesses, including banks and financial services providers, have been awaiting a web accessibility rule since the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) on the topic in 2010. The 2010 ANPRM stated the DOJ’s position that the ADA applies to businesses offering goods and services to the public via the digital channel and officially put digital accessibility on the private sector’s radar. But the rule and accompanying technical standards have yet to be published.

Nevertheless, the delay in rulemaking has not translated to a delay in enforcement. The DOJ has repeatedly taken the position in litigation, as recently as this summer, that the obligation to make websites accessible is a “current” obligation under the ADA. And the government has made it clear through settlement agreements with business entities that compliance with the ADA means meeting, at a minimum, the WCAG 2.0 AA web and mobile content accessibility guidelines issued by the World Wide Web Consortium. Additionally, advocacy groups continue to file lawsuits against entities with ADA obligations, and plaintiffs’ attorneys are issuing demand letters to business entities with regularity.

As we discussed in a recent webinar, “Digital Accessibility: The Future Has Arrived,” it is clear that businesses should not wait for the DOJ to publish a final rule before taking steps to make their websites and mobile applications accessible to individuals with disabilities. Attorneys at Ballard Spahr regularly assist clients to identify strategies and best practices to position themselves to defend against ADA claims.

For more information, please contact Brian D. Pedrow, Olabisi L. Okubadejo, Kevin D. Leitão, Juliana D. Gerrick, or the Ballard Spahr attorney with whom you work.


Copyright © 2015 by Ballard Spahr LLP.
www.ballardspahr.com
(No claim to original U.S. government material.)

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.

This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.