Digital accessibility is a constantly changing area of law. There are no explicit regulations for private companies and although we have dozens of court decisions, many of those decisions contradict each other.
Even though no one can be completely sure what the future holds for digital accessibility, we can make some educated guesses. At the tail end of 2017, we asked eight leading attorneys to dust off their Magic 8-Balls and give us their best predictions of where the law may be headed.
Will the Trump administration mean less enforcement of accessibility regulations?
There are several actions the Department of Justice could take under the Trump administration, including passing new regulations and aggressively acting as advocates for plaintiffs. However, inaction is also a possibility.
Shanti Atkins of NAVEX Global frames the possible changes under the new administration, if anything changes at all. It boils down to three scenarios: new regulations, deregulation, and non-enforcement.
“There are three questions. Are there going to be new regulations? I think the appetite for that is going to be pretty low across the board. Are we actually going to undo some of what is already around? I’m not an expert in technical accessibility regulations, but there’s a very strong sentiment that there’s going to be a tremendous state of flux for the regulatory environment in general. Financial regs are going to get the most attention, but accessibility protections I feel are unlikely to be targeted. And the third question is, aside from new regs or regs being undone, what’s the enforcement appetite like? A great example of that is immigration “reform,” a lot of which isn’t necessarily creating new laws and regulations; it’s just the level and fervor of enforcement for what already exists. But whether government enforcement ramps up or down, the private litigation engine is likely to continue in full force. These are the three areas that are going to be looked at really closely.”
– Shanti Atkins, Founder, NAVEX Global
Under the Obama administration, the DOJ was very active in digital accessibility lawsuits, often acting as an advocate for plaintiffs who claimed that inaccessible websites violated the ADA. Are we going to see a change in approach from the government with the current administration?
“We’ve all been through past changes in administrations, and know that in the Civil Rights Division in general, and particularly in the Disability Rights Section, there has been far less movement and change between administrations than in many other areas of the Department of Justice. We saw it with the change over to the Bush administration. In particular, you saw a lot more efforts at conciliation. You saw a softening of enforcement and a shift to education in other areas. They were not as aggressive with fines and penalties and not as expansive in trying to push new areas. But they still enforced the law and digital accessibility piece in general. That’s so well-established in DOJ precedent, going back to the Target decision. That’s not going to change. Nor is the idea that web access are part of the online services offered by brick and mortar colleges and universities. That’s not going to get rolled back. The Department of Justice will not take that as a priority or push them, but DOJ has not been at the forefront of a lot of this in the last three years anyway; it’s been Department of Education investigations and private lawsuits.”
– Robert L. Duston, Partner, Saul Ewing Arnstein & Lehr
“As a practical matter, I don’t think [the new administration] is going to affect the degree of enforcement in this area. I think it could shift the form of it. Because heretofore, enforcement has always been a mix of administrative agency and courts, and the courts of course are going to look to the Department of Justice to see what their position is and look at it as persuasive authority. The former administration was very aggressive in participating in court cases, once they were filed by other people, even if they weren’t, at least in my opinion, pursuing the regulatory process with as much zeal as they possibly could have. I think it’s realistic to note the fact that, irrespective of what the current administration decides to do, whether it decides not to issue regulations or decides to say they’re not going to enforce in this area, there are already case decisions on the books about this. So, members of the disability community and the disability advocacy groups, not to mention the attorneys are not going to stop pursuing claims. I’ve had to explain to clients that just because the current administration might choose to dial it back, it does not mean the courts are necessarily going to do the same.”
– Teresa Jakubowski, Partner, Barnes & Thornburg LLP
Want to Learn More?
Deregulation, legislation, court cases? There are so many variables, but we’ve got it covered. To find answers to all of your burning digital accessibility legal questions, download our whitepaper – The Digital Accessibility Crystal Ball.
This blog post is for informational purposes only and does not constitute legal advice.