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DoJ restarts the Title II advanced rulemaking process for websites
Organizations and disability groups alike are happy to learn that the Department of Justice (DoJ) announced on July 29, 2022, that they will begin the advanced rulemaking process for ADA Title II digital accessibility regulations in April 2023.
According to the announcement, “many websites from public entities (i.e., State and local governments) fail to incorporate or activate features that enable users with disabilities to access the public entity’s programs, activities, services, or information online.”
After years of lawsuits, conflicting court decisions, appeals, and pleas from businesses and Congress alike, the rulemaking process that was dropped in 2017 will begin again.
History of digital accessibility rules
The Americans with Disabilities Act (ADA) was signed into law in 1990. At that time, the internet was a new idea, and no one knew how integrated into our daily lives it would become. So there is no specific mention of digital accessibility in the ADA.
Despite this, the DoJ has stated that websites qualify as “places of public accommodation,” which means they do fall under the ADA.
In 2003, the DoJ published a notice entitled Accessibility of State and Local Government Websites to People with Disabilities. This implied that government websites should be made accessible to people with disabilities, without being an actual “regulation.”
Around 2010 the number of digital accessibility lawsuits began to rise. In the last few years, these have risen dramatically, with 4,055 digital accessibility lawsuits filed in 2021. Congress and private organizations sent numerous pleas for the DoJ to produce clear regulations applying to websites and digital information. The DoJ has sporadically issued statements supporting the idea that digital accessibility is covered under the ADA, but the regulations have never been issued. Businesses still aren’t clear on how to go about making their websites and digital documents accessible.
In 2010, the Obama administration restarted the digital accessibility rulemaking process. The process was never completed and the regulations were withdrawn again in 2017 by the Trump administration. This year, the Biden administration’s DoJ released some guidance in March, and now has taken the next step to announce the restart of the rulemaking process for digital accessibility.
Organizations should welcome new rules
Organizations, corporations, and Congresspersons, on their behalf, have been requesting clear regulations regarding ADA Title II digital accessibility regulations for years. Most recently there was an appeal to the DoJ last week. The sheer number of lawsuits (over 13,000 in the last 5 years) around this issue illustrates how organizations are falling short and don’t know how to properly address digital accessibility.
The publication of clear rules and policies that define what digital accessibility should look like will make it easier for organizations to comply. Lack of clear direction means many organizations don’t address digital accessibility correctly or don’t address it at all.
Once the regulations are in place, there will be no reason not to make websites and digital content accessible.
What happens next?
The Notice of Proposed Rulemaking (NPRM) is a “long-term action” scheduled for April 2023. The DoJ will accept public comments about what ADA Title II digital accessibility regulations should look like. Normally there is quite a lot of public comment in great detail from interested stakeholders. In this case, stakeholders will include a variety of disability groups. Submitted comments are intended to ensure that the needs of people with a variety of disabilities will be met by these regulations. Public comment must be received no later than June 2023.
If the regulations are approved and published, it is likely that Title III regulations for private entities will follow, possibly quite quickly with existing Title II regulations to work from.
Law firm Seyfarth Shaw suggests that the following questions should be answered by the Title II (and subsequent Title III) regulations:
- At what point a website or app is considered accessible in compliance with the law and how is that measured?
- What is the safe harbor period for websites to be brought into compliance with a standard for website accessibility without fear of lawsuits?
- Will there be any special provisions for small covered entities to the extent compliance results in an undue burden or hardship?
- What will be the treatment of third-party content and/or crowdsourced material as it relates to compliance?
- Will the regulations permit alternative access or “equivalent facilitation” for complex content such as detailed charts and graphs?
Do these rules apply to my organization?
Title II refers to federal, state, and local government entities and any organization that receives funding from these. Therefore, Title II may refer to your organization if you receive funding from or work closely with government entities.
Once the ADA Title II digital accessibility regulations are in place, it is fairly likely that Title III regulations for private organizations will follow. Prepare for this by getting a headstart and proactively meeting the Title II regulations.
For more information about making your website and digital documents accessible, have a look at this article, Website Accessibility: Whose Job Is It?
Tammy Albee
Tammy Albee | Director of Marketing | Equidox Tammy joined Equidox after four years of experience working at the National Federation of the Blind. She firmly maintains that accessibility is about reaching everyone, regardless of ability, and boosting your market share in the process. "Nobody should be barred from accessing information. It's what drives our modern society."