In the wake of Donald Trump’s election to the presidency, many are wondering how the new administration will affect the digital accessibility space. In the short term, we see it as unlikely that a Trump presidency will have a major impact on the status quo.
The Americans with Disabilities Act
Donald Trump has never specifically addressed the Americans with Disabilities Act (ADA), so it is difficult to predict what his stance would be. In the past, scaling back rights for people with disabilities has proven to be politically unpopular. Given that neither advancing nor curtailing the ADA is among Trump’s priorities, it is unlikely that the Department of Justice (DOJ) enforcement of digital accessibility will change in the short term. Looking further down the road, it is possible that that the DOJ may shift its priorities away from the ADA, including a possible reduction in public sector enforcement for state and local governments under ADA Title II. However, all of this is speculative.
It’s important to note that most legal action (over 98% by some analyses) is undertaken by private parties and private plaintiff attorneys. Since DOJ enforcement is a drop in the bucket relative to the total number of actions, it is doubtful the overall landscape of litigation will change.
However, given Trump’s stance that many regulations are “wasteful and unnecessary,” the proposed DOJ regulations on ADA Title II and III, which have already been long in development, are likely to get pushed back further. This lack of regulations makes digital accessibility standards nebulous, which is harmful to businesses and state and local governments. In this void, lawsuits on accessibility issues will be expected to increase, as plaintiffs will seek relief through litigation.
If you are interested in the topic, we recommend you check out Seyfarth Shaw’s ADA Title III Blog. Kristina Launey, a Seyfarth partner, put together an excellent analysis on the possible effects a Trump presidency may have on the ADA.
Section 508 Refresh
Updates to Section 508 of the Rehabilitation Act (“the Refresh”) are also unlikely to be affected by a Trump presidency. The Office of Management and Budget (OMB) is already in the process of reviewing and approving the Refresh. By Executive Order, OMB must complete its review by January 22, 2017, two days after Trump’s inauguration. It is quite possible, with the new administration coming, OMB may speed up its review, which is plausible given that the Refresh has already undergone extensive review; any changes at this point will probably be minor. However, if we do not see anything by mid-January, there’s a possibility that the Refresh may be delayed. The Refresh only affects the public sector rather than businesses, so it is a regulation that may not even be on the new administration’s radar.
Section 1557 of the Affordable Care Act
Section 1557 of the Affordable Care Act (ACA), on the other hand, is expected to be impacted. The regulation, which clarifies that health care providers must provide accessible information technology to patients, will likely be affected if Trump meets his stated goal to “repeal and replace Obamacare.” However, even if Section 1557 is repealed or materially altered, it was explicitly stated during the rulemaking process that the ACA requirements overlapped with the requirements in Section 504 of the Rehabilitation Act and Title II of the ADA. The ACA regulations added “no new requirements.” Even with possible changes coming to the ACA, health care providers will still be under the same legal obligations as before.
In the Long Term
Even if we see no short-term changes, the long term is just a guessing game. For another viewpoint of the impact of the election, noted disability rights lawyer Laney Feingold wrote a post prior to the election saying that Trump’s goal of deregulation would leave a lot of agencies toothless and we would lose the DOJ as a disability champion. In Feingold’s post-election update, she notes that states and federal judges will still uphold digital accessibility, even if things change with the new administration. Although no one without a working crystal ball will know what the long-term after-effects of the Trump presidency on disability rights will be, there is no reason to expect radical changes in the next couple of years.