Web accessibility continues to gain momentum among US companies. It’s easy to see why—since January 1, 2015, more than 61 lawsuits have been filed against companies over inaccessible websites. The lawsuits are based on Title III of the Americans with Disabilities Act. Companies that have not taken proper precautions are in limbo as the Department of Justice (DOJ) finalizes regulations over what constitutes accessible website content.

Title III of the ADA 

Title III of the ADA prohibits discrimination on the basis of disability at places of public accommodations. Public accommodations are generally defined as facilities, both public and private, that are used by the public, and include retail stores, rental establishments, service establishments, and educational institutions, among others. A notice or proposed rulemaking (NPRM) is necessary to legally establish whether online content falls under the category of “public accommodation.” As it currently stands, lawsuits are settled on a case-by-case basis. It is up to the discretion of judges to determine whether Internet websites are considered part of public accommodations; but a precedent is slowly being set that websites fall under the category of public accommodations.

DOJ Title III NPRM

Pressure is being placed on the DOJ to clarify the standards of Title III of the ADA. In late December 2015, nine US Senators requested that the DOJ complete its review of public accommodations’ websites, online systems, and other information and communication technologies.

The DOJ was expected to release clarifications by Spring 2016; however, it recently announced that final regulations won’t be ready until 2018 at the earliest. The reason for the delay, according to the DOJ, is that regulations for Title II of the ADA must be issued before they can begin on Title III.

Title II of the ADA protects individuals with disabilities from discrimination from State and local government entities.  The DOJ argues that clarifying Title II “will facilitate the creation of an important infrastructure for web accessibility that will be very important” for Title III rulemaking.

Over the past five years, the DOJ has repeatedly stated that a website is considered “accessible” if it complies with the Web Content Accessibility Guidelines 2.0 AA standards. While some may take solace in the fact that no formal guidelines have been issued, fines and penalties are still being issued over inaccessible websites. For example, in 2006 Target was sued over its inaccessible online presence, and was ordered to pay a $6 million fine (see “National Federation of the Blind v. Target Corporation” post for more information). Until a NPRM is issued, all businesses and organizations are at risk.