[NFBWATLK] US DOJ Reaffirms Positions on Website Access

Nightingale, Noel Noel.Nightingale at ed.gov
Wed Oct 10 15:28:45 UTC 2018

From: GCDE [mailto:gcde at public.govdelivery.com]
Sent: Monday, October 8, 2018 4:43 PM
Subject: US DOJ Reaffirms Positions on Website Access

Response to concerned Members of Congress maintains long-standing positions

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US DOJ Reaffirms Positions on Website Access


In June, 103 Members of Congress sent a letter to the Department of Justice asking the Department to issue regulations regarding the application of ADA to the websites of  public accommodations. The letter contained the same kind of misinformation and hyperbole that has fueled other recent attacks on the ADA, such as H.R. 620, called "the ADA Education and Reform Act."

When DOJ placed its rule making on website access on inactive status, disability advocates where largely divided between those who were concerned by what they saw as a first step toward abandoning website access and those who were revived, because they thought that the existing statements and settlements DOJ had already made in this area were stronger than any rule that was likely to be issued under the current administration. Actually, many agreed with both positions.

So, it is a relief that DOJ's response to an inflammatory letter from so many Members of Congress, is a simple matter-of-fact restatement of the Department's longstanding positions on website access under the ADA and the arguments that support those positions.

 DOJ's letter, the text of which is provided below, reaffirms each of the following positions:

 ADA applies to public accommodations' websites through the requirement that the goods, services and activities they provide be equally accessible for people with disabilities;

 The absence of an enforceable technical standard for website access does not excuse failure to comply; and

That in the absence of a technical standard the measure of compliance is whether people with disabilities really have equal access.

The one ominous note in the letter is a closing reference to "Congress' ability to provide greater clarity through the legislative process." As always, the disability community needs  to remain watchful for any new efforts to undermine our right to equal access under the ADA. Toby Olson

U.S. Department of Justice

 Office of Legislative Affairs

Office of the Assistant Attorney General                                                 Washington, D.C. 20530

 The Honorable Ted Budd

. U.S. House of Representatives Washington DC 20515-0001

Dear Congressman Budd:

This responds to your letter dated June 20, 2018, regarding website accessibility for public accommodations under the Americans with Disabilities Act (ADA). We apologize for our delay in responding your letter.

 As you may know, on December 26, 2017, the Department of Justice (the Department) published a Notice of Withdrawal of Four Previously Announced Rulemaking Actions in the Federal Register. 82 Fed. Reg. 60932 (Dec. 26, 2017). Two of the withdrawn rulemakings were related to the accessibility of web information and services under the ADA. The first withdrawn rulemaking (RIN 1190-AA61) covered accessibility of web information and services of public accommodations. The second withdrawn rulemaking (RIN 1190-AA65) covered accessibility of well services of state and local governments.

 As indicated in the Notice of Withdrawal, the Department is evaluating whether * promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA. The Department will also continue to review its entire regulatory landscape and associated agenda, pursuant to the regulatory reform provisions of Executive Order 13771, "Reducing Regulation and Controlling Regulatory Costs" and Executive Order 13777, "Enforcing the Regulatory Reform Agenda."

 The Department first articulated its interpretation that the ADA applies to public accommodations' websites over 20 years ago. This interpretation is consistent with the ADA's title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.

The Honorable Ted Budd Page Two

Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute's requirements.1 Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA's general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.

 We very much appreciate the concerns regarding the impact that the risk of litigation has on covered entities. The Department remains committed to safeguarding accessibility for individuals with disabilities while also working with covered entities to ensure that compliance with the ADA is feasible and sustainable. Given Congress' ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.

 We hope this information is helpful. Please do not hesitate to contact this office if we may provide additional assistance regarding this or any other matter.

 Stephan E. Boyd

Assistant Attorney General

1 In Robles v. Dominos Pizza, which you referenced in your letter, the court did not dispute that websites of public accommodations that provide goods or services are subject to the ADA's accessibility requirements. Rather, the Robles court took issue with the plaintiffs position that compliance with a specific technical standard for web accessibility was necessary to comply with the ADA's requirements.

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