Department of Justice Accelerates Expectations for Website Accessibility

As discussed in our May 29, 2015 entry,Website Accessibility Under the ADA,” the U.S. Department of Justice (DOJ), in the absence of regulations, recognized certain industry principles as guiding public accommodations when making websites accessible under the Americans with Disabilities Act (ADA). Relying on such guidelines, businesses and public agencies reasonably believed providing website content in “accessible alternative” formats would ensure equal access in compliance with the ADA. Recently, the standard has become even less clear: the DOJ has stated its expectation that public accommodations (including public entities) make websites fully accessible now, despite the lack of formal guidance as to what the DOJ considers a legally compliant accessible website.

The shift in the DOJ’s stated expectations became known after the National Association of the Deaf (NAD) sued Harvard University for violating Title III of the ADA and Section 504 of the Rehabilitation Act by denying individuals who are deaf or hard of hearing equal access to the school’s online programming.  In a Statement of Interest submitted on behalf of the NAD, the DOJ cautioned that even in the absence of a projected publication date for its regulations on website accessibility, public accommodations are expected to make their online goods or services fully accessible to individuals with disabilities. For Harvard, a private university, this expectation meant captioning its online programming. The DOJ argued against Harvard’s position that the case should be stayed until the DOJ issues regulatory guidance on accessibility requirements. (The video content did not refer to course offerings but to the many general interest videos posted on the university’s website.) The Harvard lawsuit is still pending in a Massachusetts federal court, along with a similar suit against the Massachusetts Institute of Technology.

The DOJ’s brief refers to “pre-existing obligations” under the ADA to make websites accessible. Without asserting that closed captioning is required to make every online video accessible, the DOJ did indicate video content must be accessible to every person with a disability, not only among potential customers but in the general public.

The DOJ now estimates its proposed regulations will be issued in spring 2016; however, there is no guarantee the regulations will be available then (the DOJ first announced its “notice of proposed rulemaking” on this topic in 2010). In the meantime, public and private organizations should not rely on industry standards for alternative formats of website media; to avoid litigation, websites should be fully compliant and accessible despite the lack of regulatory guidance.

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