The US Department of Justice (DOJ) recently submitted to the Federal Register for publication a notice of proposed rulemaking under Title II of the American With Disabilities Act (ADA) that aims to improve access to website and mobile applications for people with disabilities by creating a minimum standard for state and local governments to meet existing ADA obligations. Notably, this marks the first time in the history of the ADA that the DOJ has issued a proposed rule on website accessibility; even though the proposed rule applies only to state and local governments, it should also provide guidance for businesses operating websites and mobile applications in the private sector, which have been targeted by serial plaintiffs in recent years.
The DOJ’s proposed rule seeks to ensure people with disabilities can utilize government-provided services that are currently available online (e.g., applying for permits, registering vehicles, paying taxes and fees, etc.) as well as ensure access to important information that government officials often relay to citizens in times of crisis, such as captioned video messages posted online during states of emergency. The proposed rule is expected to address technical standards like integrating text descriptions of images for blind and visually impaired people using screen readers, providing captions on videos for deaf and hard of hearing users, and enabling navigation through a keyboard instead of a mouse for individuals with limited use of their hands. Once the proposed rule is published on the Federal Register’s website, the general public will have the opportunity to provide input.
Private businesses that are open to the public (i.e., businesses providing goods and services with an online presence), which are governed by Title III of the ADA, should pay close attention to the proposed rule and otherwise take steps to ensure that their websites and mobile applications are accessible to disabled users, consistent with the minimum standard created by the proposed rule as well as the DOJ guidance issued in March 2022. Failure to do so could result in litigation by any one of the plethora of serial plaintiffs who, in recent years, have collectively filed thousands of website accessibility lawsuits, primarily against small businesses, in state and federal courts throughout the country.
Barclay Damon will continue to monitor the situation and provide an update once the DOJ’s proposed rule is published. In the unfortunate event you are served with a website accessibility lawsuit, please do not hesitate to contact one of the attorneys at Barclay Damon, who have represented and continue to represent defendants in these and similar lawsuits.
If you have any questions regarding the content of this alert, please contact Rob Thorpe, partner, at rthorpe@barclaydamon.com; Payne Horning, associate, at phorning@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area or Hotels, Hospitality & Food Service Team.
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