DOJ Withdraws ADA Rulemaking Process

Today the Department of Justice announced that it is withdrawing the process for updating technical guidance for websites under the Americans with Disabilities Act. This leaves the web in a precarious position – one where inaccessibility can be considered discriminatory, but without any guidance as to what “inaccessibility” actually means.

In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking which clarified that the web is covered by the ADA – an inaccessible web site could be considered discrimination against users with disabilities. They promised that defined scoping of that statement and technical guidance would be forthcoming. They missed numerous self-defined deadlines for providing such guidance, then in April 2016 issued a Supplemental Advance Notice of Proposed Rulemaking to seek additional feedback and guidance on how best to define and implement technical web standards. WebAIM, and many other entities, provided detailed feedback and recommendations to the DOJ’s 123 questions (read WebAIM’s response here). Today’s action seemingly negates those 7 years of effort and feedback.

Throughout this process, complaints via the Office of Civil Rights and lawsuits and threats of lawsuits regarding web accessibility have skyrocketed. While we absolutely support such actions where people have truly encountered discrimination and web access barriers online, many of these have had other motivations – demands for legal nuisance payments to avoid litigation. Many of these threats provide little documentation of actual accessibility issues or how they negatively impact actual users – and sometimes entities that have very reasonable levels of accessibility have found themselves in the crosshairs simply because they are more likely to pay a nuisance fee than fight a lawsuit.

While these threats of lawsuits have certainly brought about change, they have done so in less than optimal ways, sometimes creating a culture of animosity toward people with disabilities.

Of course the solution to all of this is true accessibility, and there’s little excuse for entities to not be making reasonable efforts to address accessibility. Regardless, the administration’s decision to bury the prospect of this important guidance is very disappointing and promulgates an environment of confusion and fear. If further opens the door for unchecked threats and lawsuits. We encourage you to contact your elected representation to express disapproval of this action and to encourage legislation, rather than administrative action, on this important matter.