A group of 103 members of the House of Representatives have asked the Department of Justice (DOJ) to act to curb website accessibility lawsuits under the Americans with Disabilities Act (ADA) until formal regulations are adopted.
In a letter to Attorney General Jeff Sessions, the Representatives ask the DOJ to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles” in the absence of clear regulations.
The letter was prompted by the recent increase in digital accessibility litigation, due in part to the DOJ’s decision last year to withdraw its proposal to adopt specific regulation on the subject.
“[U]nresolved questions about the applicability of the ADA to websites as well as the Department’s abandonment of the effort to write a rule defining website accessibility standards, has created a liability hazard that directly affects businesses in our states and the customers they serve,” the letter read.
The letter also endorses the decision in Robles v. Domino’s Pizza, in which a federal judge in California held that requiring businesses to comply with WCAG 2.0 guidelines without specific regulation to that effect “flies in the face of due process.” The case is currently under appeal to the Ninth Circuit Court of Appeals, but other courts have largely rejected the reasoning in the Domino’s Pizza case, including a later decision by a different judge in the same court, Gorecki v. Hobby Lobby Stores, Inc.
Even if the DOJ does make a statement endorsing the due process argument from the Domino’s Pizza decision, however, it is unlikely to curb website accessibility litigation. Guidance statements from the DOJ are not binding on courts, which would remain free to adopt or reject the DOJ’s position. To be binding, the statement would need to go through the regulatory process, including a public comment period—the same onerous regulatory process that kept the DOJ from adopting website accessibility rules for seven years.
The letter was signed by 103 members of the House of Representatives. The group was largely made up of Republicans, but also included Democrats Luis Correa of California, Sanford Bishop of Georgia, and Bill Pascrell of New Jersey. Slightly over half of the signatories had previously sponsored H.R. 620, also known as the ADA Education and Reform Act, which passed the House in February, but faces long odds in the Senate.
This letter is not the only recent effort by Congress to prod the DOJ into action on website accessibility regulations. In May, a House appropriations bill included language encouraging the DOJ to act on the matter in fiscal year 2019.
Whether any of these actions will inspire the DOJ to act, however, remains an open question.
This blog post is for informational purposes only and does not constitute legal advice.