Seyfarth Shaw LLP Minh N. Vu USA
July 30 2013
Nearly three years ago, in September 2010, the Department of Justice (DOJ) announced that it would be issuing proposed regulations governing the accessibility of websites of public accommodations and state and local governments. The announcement came in the form of an Advanced Notice of Proposed Rulemaking which sought comments from the public about what should be in the rule, including technical standards for what constitutes an accessible website. As we reported here, the DOJ had previously announced that it would issue the proposed rule for state/local governments this month, and the proposed rule for public accommodations this December. Last week, the DOJ pushed back these dates by 3-4 months to November 2013 and March 2014, respectively.
The DOJ has been tight-lipped about this pending rule so we can only surmise that the magnitude of this effort — including preparing the cost impact analysis — is contributing to the delay. The recent departure of now U.S. Secretary of Labor Tom Perez from his prior post as head of the DOJ Civil Rights Division (the DOJ division responsible for the proposed rule) may also be a factor.
The impact of this forthcoming proposed rule cannot be overstated. Virtually every business and state and local government in America has a website but very few have the technical expertise to make their websites accessible. While the list of qualified digital accessibility consultants is growing, it is not nearly long enough to assist the millions of businesses and governments that will need to make significant changes to their websites to meet any website accessibility standard that DOJ ultimately adopts. These consultants also charge hundreds of dollars an hour so the cost of compliance will be significant.
It will be interesting to see whether the DOJ will recognize these practical challenges for both large and small businesses.
The delay will likely cause some businesses to adopt a wait and see attitude on the theory that there are no rules on the subject, as the Wall Street Journal discussed. We think this is risky because private plaintiffs and disability advocacy are not waiting. They are taking matters into their own hands, filing lawsuits and complaints with state agencies which are costly to address. The DOJ, state agencies, and state attorney generals are also using the threat of enforcement actions to pressure businesses to “voluntarily” make their websites and mobile applications accessible. In short, we believe businesses are better off taking a proactive approach to accessibility. Even if a complete website redesign for accessibility is not feasible, most business will have opportunities in the future to build accessibility into new web pages or mobile applications. It is critical for businesses to get their website teams familiar with this issue now so that they can seize on those opportunities.