John D. McMickle is co-founder of North South Government Strategies, a Washington, DC-based consulting firm. He was previously a Judiciary Committee Counsel for Senator Charles Grassley and a Partner with Winston & Strawn, LLP. He is the author of a September 21, 2018 WLF Legal Backgrounder, The Americans with Disabilities Act and Cyberspace: Who Will Provide Sorely Needed Guidance?

In recent years, Congress had demonstrated a continuing interest in addressing litigation abuses under Title III of the Americans with Disabilities Act (“ADA”). According to a document from the Administrative Office of the United States Courts (the administrative body of the federal judiciary which, among other things, tracks trends in federal litigation), civil rights cases filed in federal courts between 2005-2017 decreased by 12 percent while ADA cases during the same period increased by an astounding 395 percent. Much of the recent uptick in ADA litigation can be attributed to lawsuits regarding websites. As the Washington Legal Foundation has argued in a Supreme Court amicus brief, it is not clear that the ADA, enacted by Congress before the World Wide Web even existed, applies to websites. And the Supreme Court recently declined to hear an appeal from Domino’s Pizza that could have harmonized conflicting circuit court decisions.

In 2018, the House of Representatives passed legislation, the ADA Education and Reform Act. Although the Senate failed to consider this measure, which would have required potential litigants to give notice of an ADA violation before filing a lawsuit, a similar bill is expected to be introduced in late 2019 or early 2020. As the law stands now, any prudent business with a public-facing website has to guess how to make it compliant with the ADA.

Meanwhile, interested Senators have focused on the power of the Department of Justice to provide legal clarity around whether and how the ADA applies to websites. In response to a July, 2019 letter from several U.S. Senators, the Department of Justice recently reiterated its “longstanding interpretation that the ADA applies to the websites of public accommodations.”

This way of stating the issue—that the ADA applies to websites of public accommodations—could be significant. One of the issues that the Supreme Court could have resolved in the Domino’s Pizza case is whether the ADA applies to web-only business. There is currently a circuit split on this question. It is the rule in some federal circuits that the ADA applies only to websites that are related to a physical space that is also covered by Title III of the ADA. In other circuits, websites are classified as public accommodations whether or not connected to a physical place. One wonders whether DOJ intended to communicate a view on this point.

The letter is also noteworthy for stating, yet again, that absent a formal rulemaking, DOJ will not establish “specific technical requirements” for making websites compliant with the ADA. This aspect of the letter is perhaps the most disingenuous and frustrating for stakeholders. In fact, DOJ has used “specific technical requirements” to settle ADA lawsuits when DOJ is the plaintiff. In 2104, for instance, when DOJ settled a Title III ADA action against Peapod (the web grocery ordering and delivery service for Giant Foods) for failure to make its website accessible, the settlement agreement required that Peapod use a certain technical protocol known as WCAG 2.0. The settlement agreement (available here) stated that “[u]under the agreement, Peapod is required to…ensure that www.peapod.com and its mobile applications conform to, at minimum, the Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA), except for certain third party content.” Similarly, in 2015, the Department required the municipality of Cedar Rapids, Iowa to comply with WCAG 2.0

In other words, DOJ actually imposes a standard for website accessibility in litigation but refuses to do so through rulemaking. DOJ maintains that the failure to announce a binding regulatory standard is actually good news—website owners have flexibility to comply with the ADA in various ways. The letter does not point to any specific compliance strategy, merely stating that the “touchstone for compliance with the ADA with respect to the websites of public accommodations remains the requirements of nondiscrimination and effective communication.” Given the predatory litigation environment surrounding Title III of the ADA, the absence of any binding standard of general application leaves website operators to the tender mercies of serial plaintiffs.

An alternative approach to the issue of website accessibility could look to the standards the federal government applies to itself for its own websites. Rules issued under Section 508 of the Rehabilitation Act of 1973 use the WCAG 2.0 standard for federal websites. Further, the Section 508 rule contains several “safe harbors” to ensure that compliance with WCAG 2.0 does not unduly burden federal agency resources. Applying this regulatory approach to private sector websites covered by the ADA would promote accessibility while ensuring that the private sector benefits from similar safe harbors.

DOJ also notes that websites associated with a physical space could be considered “auxiliary aids” designed to assist the disabled in the use and enjoyment of a public accommodation. Under this view, DOJ seems to leave open the possibility that a website owner could satisfy its obligations under Title III if the owner provided access to information through an alternative means. Thus, for instance, a customer service telephone number that provides a blind customer with assistance with ordering from a retailer might satisfy the ADA.

Interestingly, the 2019 Senate letter also asked Attorney General Barr whether “the Department considered intervening in pending litigation to provide clarity on these issues, or to push back against any identified litigation abuses?” (emphasis added.) Such a federal effort would provide a much-needed supplement to state and local efforts. For instance, the Attorney General of Arizona and the District Attorney of Riverside, California have sought to dismiss apparently non-meritorious ADA lawsuits. And in August, 2019, a federal court sanctioned a Miami attorney and his client for a litigation strategy “to dishonestly line their pockets with attorney’s fees from hapless defendants under the sanctimonious guise of serving the interests of the disabled community.”

In sum, the position of the Department of Justice remains untenable. DOJ believes the ADA applies to at least some websites but will not provide guidance to stakeholders—except in the course of a specific enforcement action. Such a stance is a dereliction that could undermine public confidence in the laudable purposes of the ADA. The business community has to guess how to ensure a website complies with the ADA, and hope it guessed correctly. Surely it is more beneficial—for all involved—for businesses to spend time and resources complying with meaningful standards. Perhaps DOJ will at least target litigation abuses to mitigate the financial jeopardy that flows from the legal uncertainty that DOJ itself has created.

First published by the Washington Legal Foundation at: https://www.wlf.org/2019/11/13/wlf-legal-pulse/after-doj-letter-on-website-compliance-the-ada-guessing-game-continues/