Just as I'm about to argue the appeal in Gil v. Winn-Dixie in the 11th Circuit Court of Appeals this week, there is news on the Executive Branch's position on the question.
The US Department of Justice has responded to 103 Members of Congress and declared in a September 25, 2018 letter that there is no need for regulations to confirm that public accommodations' websites are covered by the ADA and must be accessible.
Whether that conclusion is supported / upheld by all the courts in the land remains to be seen.
Some circuit courts have held that all websites must be accessible; period. Some have held that websites which have a connection, a nexus, to a physical place must be accessible. Some circuits have not yet spoken to the issue.
The DOJ appears comfortable that the ADA statute itself is clear enough.
Anyone contemplating this question would be well advised to check with an attorney or someone else expert on the issue for advice.
David Ferleger
http://www.ferleger.com
david@ferleger.com
_____________________________
The blog below is from Attorney Lainey Feingold's excellent blog, which I recommend. https://www.lflegal.com/2018/09/doj-cut/
DEPARTMENT OF JUSTICE AFFIRMS ADA’S COVERAGE OF WEBSITES
POSTED ON SEPTEMBER 28, 2018
A September 26, 2018 article in the Credit Union Times brought a sigh of relief to those working for an accessible, inclusive digital world. The article was titled DoJ Refuses Request to Issue ADA Guidance for Websites. It announced that the Department of Justice was not going to issue any new regulations about web accessibility and the ADA.
Under the current administration this is welcomed news.
A copy of the DOJ’s letter is linked to the Credit Union Times’ article. It is reprinted here in full so an accessible version is available to anyone who wants to read it.
o Jump to a Simplified Summary of this Article, a feature of this website designed to meet WCAG Success Criteria 3.1.5 (a WCAG 2.1 AAA Reading Level requirement).
DOJ’s Response to 103 Members of Congress
The DOJ’s letter was sent to Congressman Ted Budd. In June of this year the Republican from North Carolina had joined 103 members of Congress in sending a letter to the DOJ asking the Department to issue regulations in response to a significant number of lawsuits filed against credit unions. Read about the June, 2018 letter to DOJ in the Seyfarth Shaw ADA Title III blog.
The DOJ’s September 25, 2018 letter is unequivocal in describing the application of the ADA to websites:
The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities. September 25, 2018 letter from Assistant Attorney General, US Department of Justice
The DOJ’s letter also reminds the congressman that “the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.” (This is something I have written about for a long time, including last December’s post titled No ADA Web Accessibility Regulations? No Excuses.
Full text of September 25, 2018 Letter From the U.S. Department of Justice
U.S. Department of Justice
Office of Legislative Affairs
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
Washington, D.C. 20530
The Honorable Ted Budd
U.S. House of Representatives
Washington DC 20515-0001
U.S. House of Representatives
Washington DC 20515-0001
Dear Congressman Budd:
This responds to your letter dated June 20, 2018, regarding website accessibility for public accommodations under the Americans with Disabilities Act (ADA). We apologize for our delay in responding your letter.
As you may know, on December 26, 2017, the Department of Justice (the Department) published a Notice of Withdrawal of Four Previously Announced Rulemaking Actions in the Federal Register. 82 Fed. Reg. 60932 (Dec. 26, 2017). Two of the withdrawn rulemakings were related to the accessibility of web information and services under the ADA. The first withdrawn rulemaking (RIN 1190-AA61) covered accessibility of web information and services of public accommodations. The second withdrawn rulemaking (RIN 1190-AA65) covered accessibility of web services of state and local governments.
As indicated in the Notice of Withdrawal, the Department is evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA. The Department will also continue to review its entire regulatory landscape and associated agenda, pursuant to the regulatory reform provisions of Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs” and Executive Order 13777, “Enforcing the Regulatory Reform Agenda.”
The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.
Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.1 Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.
We very much appreciate the concerns regarding the impact that the risk of litigation has on covered entities. The Department remains committed to safeguarding accessibility for individuals with disabilities while also working with covered entities to ensure that compliance with the ADA is feasible and sustainable. Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.
We hope this information is helpful. Please do not hesitate to contact this office if we may provide additional assistance regarding this or any other matter.
Sincerely,
Stephen E. Boyd
Assistant Attorney General
Assistant Attorney General
1.In Robles v. Dominos Pizza, which you referenced in your letter, the court did not dispute that websites of public accommodations that provide goods or services are subject to the ADA’s accessibility requirements. Rather, the Robles court took issue with the plaintiffs position that compliance with a specific technical standard for web accessibility was necessary to comply with the ADA’s requirements
-->
