The DOJ’s Regulatory Agenda Leaves Out Web Accessibility – What This Really Means [Blog]

This week, the United States Department of Justice (DOJ) released an updated regulatory agenda, and previously-planned Website Accessibility (WA) regulations under the Americans with Disabilities Act (ADA) have been marked as inactive. This means that while the proposed updates to the ADA’s Titles II and III have not been withdrawn, they will not be a priority for this administration. While these actions aren’t wholly unexpected, they add additional uncertainty to a situation complete with rampant (and growing) litigation, parallel legislation at the Department of Transportation (DOT) and Health and Human Services (HHS), and a growing number of businesses entering the fray.

While some have taken the DOJ’s updated stance to mean that the lawsuits will slow down and courts will not rule against defendants, this is not the case.  The increased chance that the Department will do nothing in the short term to set practical web accessibility standards only increases the urgency to start making changes now. 

Here are three reasons why you should still focus on addressing web accessibility now:

       1. Without a firm DOJ stance and legislation, there is truly no way to prevent liability for these cases.

Many organizations who have been sued or sent demand letters for inaccessible websites over the past few years have used this as a defense to no avail, and the courts seem keen to keep hearing these cases and letting them go to settlement in lieu of a firm DOJ stance. This means that serial plaintiffs and their law firms can keep bringing these suits and settling out of court.

       2. Web Accessibility lawsuits are still expanding rapidly as more plaintiffs and law firms join in on the action. 

In 2015, there were less than 100 lawsuits. In 2016, there were over 250 such suits.  This trend will continue to rise through 2017 and beyond, and the lack of DOJ direction on standards has not culled this in the past.   In the past twelve months, there have also been two landmark rulings in favor of plaintiffs in WA suits, one in a Federal Court in Florida. See our blog here about the Winn Dixie Case and what it means for your website.

       3. Even if most cases do not end in a ruling in favor of the plaintiff, they often end in settlement, where the defendant pays for the cost of remediation, in addition to legal fees.

In many such cases, defendants have had to pay hundreds of thousands of dollars in legal fees on top of the remediation, and in some cases like Target, punitive damages in the settlement totaled millions of dollars.

The takeaway from the Department of Justice’s updated stance on web accessibility regulation is this: even without firm standards, demand letters and lawsuits will continue, rulings in favor of plaintiffs will continue and maybe expand, settlements will continue. Even if the law doesn’t change until 2020, the movement towards an accessible web for all will continue; the movement towards inclusive design will roll on.  At the end of the day, your organization will need to remediate any and all accessibility issues on your websites and apps, and it is better to address this now so you are prepared for when the law does change.