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The Department of Justice (DOJ) announced that it has rescinded two Advanced Notices of Proposed Rulemaking (ANPRM) related to website accessibility under Title II of the Americans with Disabilities Act (ADA) applicable to state and local governments and under Title III applicable to private businesses open to the public.
In 2010, the DOJ issued the proposal concerning how the ADA applies to website accessibility. Since this regulation was considered but never finalized, credit unions and other businesses are seeing a drastic increase in frivolous demand letters alleging claims of failure to comply with the ADA. The lack of clarity has also allowed courts to take liberties in their interpretations of required standards for website accessibility. Just over the past week, credit unions have seen predatory litigation in this area skyrocket.
In reference to its decision to withdraw the rule, the DOJ stated that it is, “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate. Such an evaluation will be informed by additional review of data and further analysis. The Department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”
We appreciate the DOJ’s stated willingness to further examine and analyze this issue, something we have been asking them to do for several months. Notably, a lack of clarity on this issue remains and credit unions
should continue to review CUNA’s compliance resources.
The decision to rescind this ANPRM arguably could be somewhat helpful since at least one court dismissed a website accessibility case on due process grounds because the complaint did not specify, “a particular level of success criteria and because the DOJ has not offered meaningful guidance on this topic.” (Robles v. Dominos Pizza LLC, No. CV-16-6599 SJO (SPx), 2017 WL 1330216, at *5 (C.D. Cal. Mar. 20, 2017). The court further found that until the DOJ takes “action to set minimum web accessibility standards,” the court cannot “determine what obligations a regulated individual or institution must abide by in order to comply with Title III.”
As such the DOJ’s decision to withdraw the ANPR provides fodder to the argument that it has not spoken on this topic and there would not be due process in finding that there is a national standard.
Alternatively, however, there has also been case law calling into question any due process arguments. In Gorecki v. Hobby Lobby Stores, Inc., No. CV 17-1131-JFW(SKX), 2017 WL 2957736, at *6 (C.D. Cal. June 15, 2017), rejected the decision in Dominos and instead found there was no due process violation because the DOJ has maintained for 20 years that websites must be accessible, which the court argued provided notice to defendant.
It is also important to note that notwithstanding the DOJ’s actions, a number of circuits have found that version 2.0 of W3C’s Web Content Accessibility Guidelines (WCAG 2.0) is the standard that businesses must meet for website accessibility. It is possible that the DOJ’s actions to withdraw its ANPR does not shed further clarity on this case law. As such, credit unions should continue to review CUNA’s compliance resources for website accessibility.
CUNA met with the DOJ this fall to urge clarity on this issue. Specifically, we asked that the DOJ:
It would be helpful for credit unions to have clear rules for which they must comply.
It is also essential to know if the Web Content Accessibility Guidelines (WCAG) 2.0 is the required standard as some courts have held, and if credit unions must come into compliance with any new WGAC, including likely changes in 2018.
Additionally, credit unions need clarity about whether websites are in fact considered a public accommodation since there has been conflicting case law on this issue.
If the DoJ is unable to finalize its regulation, we ask that it provide immediate clarification that the DoJ ANPR is inapplicable and no court should rely on its content.
Furthermore, through other less formal guidance than a regulation, the DoJ could go further to provide credit unions and other businesses and financial service providers with much needed clarity about their stance on this issue.
We greatly appreciate that the DOJ appears to be recognizing the problems its ANPR has caused for credit unions and other businesses and that they are further researching this matter at our suggestion. However, we are going to continue to urge the DOJ and Congress to provide much needed additional clarity surrounding this issue.
CUNA’s compliance resources for this issue can be accessed at the links below:
WCAG 2.0 – A, AA or AAA? (11/3/17)
Web Content Accessibility Guidelines 2.0 (10/16/17)
ADA Accessibility: Common Problems & Solutions (2/8/17)
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ADA Compliance Notice & Legal
© 2017 Credit Union National Association |
ADA Compliance Notice & Legal