Recently, the SC Employers’ Blog alerted you to a rising trend where serial claimants send demand letters to various private companies alleging the company’s website discriminates against individuals who are blind or visually impaired.
That blog discussed a proposed Department of Justice (“DOJ”) rule, which would clearly define accessibility guidelines for public accommodations under Title III, and it was thought that the DOJ would implement those rules in 2018.
All recent signs are now suggesting otherwise. A recent Executive Order seems to put the DOJ rulemaking on website accessibility on hold for the foreseeable future. On January 20, 2017, all administrative agencies were temporarily “frozen” via a White House Memorandum, in order for the new agency heads appointed by President Trump to review all policies and proposed rules, and determine what agency initiatives would be continued or disbanded. On January 30, the President issued Executive Order 13771 titled “Reducing Regulation and Controlling Regulatory Costs.” This Order was issued to manage “costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.”
Executive Order 13771 sets forth three guidelines for federal agencies moving forward:
For 2018 and beyond, each agency head shall identify the incremental cost for each regulation, the offsetting regulations, and provide the agency’s best approximation of the total costs or savings associated with each new regulation or repealed regulation. Under this order, the Director is required to identify a total amount of incremental costs that will be allowed for each agency when issuing new regulations and repealing regulations for the next fiscal year during the Presidential budget process.
This then begs the question, “What does this mean for DOJ’s proposed rulemaking regarding website compliance under the ADA?” The DOJ clearly feels that websites are subject to the ADA, but given the constraints imposed on future rulemaking by Executive Order 13771, the DOJ will have to carefully select what regulations it chooses to roll out in the future. This means the general accessibility mandate required by the ADA is likely to be the law for the foreseeable future. As explained in our previous blog post, the general accessibility mandate, or the “auxiliary aid requirement,” requires that a public accommodation take necessary steps to ensure no individual with a disability is excluded, denied services, segregated or otherwise treated differently, unless the public accommodation can demonstrate that taking those steps would fundamentally change the nature of the goods or be unduly burdensome. What type of auxiliary aid will suffice is still to be determined through case law or any forthcoming rulemaking, whenever that may be.
On March 20, the Central District of California recently dismissed a case due in part to the DOJ’s failure to specify what an accessible website is under the ADA. The Court in Robles v. Dominos Pizza, LLC, No. CV 16-06599 SJO (SPx) (C.D. Cal. Mar. 20, 2017) granted Dominos motion to dismiss on the grounds that Plaintiff’s attempted imposition of the WCAG 2.0 Standards “flies in the face of due process.” The court referenced the DOJ’s prolonged rulemaking process for the ADA’s website accessibility standards and noted the questions the DOJ raised more than seven years ago are still unanswered. To require Dominos to comply with the WCAG 2.0 standards “without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic” violates Dominos’ due process rights. The court dismissed the plaintiff’s causes of action without prejudice, pursuant to the primary jurisdiction doctrine. Generally speaking, a court invoking the primary jurisdiction doctrine is deferring to the expertise and uniformity of the relevant agency, rather than rendering a decision on the matter that would have the effect of creating law.
The Robles court briefly discussed auxiliary aids, but provided no guidance on whether what Dominos was using sufficed. Dominos included on their website (after the suit was filed) “accessibility banners that direct[s] users who access the website using a screen reader with the statement: ‘If you are using a screen reader and are having problems using this website, please call 800-254-4031 for assistance.’” This number was staffed by a live representative who provided blind or visually impaired individuals with assistance. The court did not rule on whether this was an appropriate auxiliary aid, but did note, “Plaintiff has failed to articulate why either Defendant’s provision of a telephone hotline for the visually impaired or it’s compliance with a technical standard other than the WCAG 2.0 does not fall within the range of permissible options afforded under the ADA.” Other agencies and companies have employed live phone representatives in a similar manner. While this seems to be ensuring “effective communication” between the public accommodation and the disabled individual, we have yet to find a case where a court has explicitly approved this under the law.
As the amount of website accessibility cases increase, we can only expect increased pressure on the DOJ to issue clear and defined rules on website accessibility.