The U.S. Department of Justice (DoJ) announced in November that it’s holding off until the 2018 fiscal year on publishing the proposed rules to make commercial websites accessible under Title III of the Americans with Disabilities Act (ADA).
This announcement, published in the department’s Statement of Regulatory Priorities for Fall 2015, comes roughly four years after the DoJ first said it would issue rules for how companies and other providers of “public accommodations” have to make their websites accessible to visitors with disabilities.
Even though the DoJ is delaying requirements that apply to commercial websites, covered under Title III of the ADA, it will proceed with publishing Title II amendments (applying to state and local government websites) this month, January 2016. The DoJ believes the smaller Title II project will give it valuable insights and create the necessary infrastructure for broad commercial website accessibility under Title III.
Whenever the Title III changes do go into effect, any company with a website will have to carefully review its content to make sure it’s accessible to the widest possible range of readers.
What is the Americans with Disabilities Act and Title III Amendment?
As a refresher, the Americans with Disabilities Act (ADA) is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life and in the activities of places of public accommodation, including jobs, schools, transportation, and all public and private places that are open to the general public. It became law in 1990.
The ADA revisions are to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet accessible to individuals with disabilities. Under the ADA Title III amendment, achieving website accessibility is defined as being compliant with Level AA guidelines of the WCAG 2.0 (Web Content Accessibility Guidelines) standard.
Title III applies to websites of commercial businesses and non-profit service providers – privately operated entities that own, operate, lease, or lease to places of public accommodation, such as large corporations, restaurants, movie theaters, schools, retail stores, doctor’s offices, recreation facilities, etc. as well as commercial facilities such as factories, warehouses or office buildings.
The Federal Rulemaking Process
To provide some context around the delay to the Title III amendment NPRM being published, let’s review the US Federal Government rulemaking process. The federal rulemaking process is a detailed, often multi-year endeavor that is used to establish new regulations or updates to regulations with the help of public participation. Following are the key stages of the process:
Advanced Notice of Proposed Rulemaking (ANPRM): Preliminary stages of rulemaking that publishes the agency’s initial analysis and provides the public with an opportunity to provide comments and participate in rule-making.
Notice of Proposed Rulemaking (NPRM): Publishes actual language of proposed rule in the Federal Register, addresses comments made during the NPRM stage and solicits further comments from the public.
Final Rule: Usually the proposed rule becomes the final rule with some minor adjustments.
Judicial Review: This is when the courts review the rule in greater detail to address any lawsuits filed by the public and to ensure the agency has not exceeded its rulemaking authority and has followed the proper process for public comments.
Effective Date: The rule generally does not become effective for some time after its publication to allow affected parties to come into compliance.
The ADA Title III amendment is currently at the “ANPRM published” stage, with the comment period for the ANPRM closed. The next step is to publish the NPRM after taking into account comments received for the ANPRM, which is now expected to occur sometime in 2018.
History of the ADA Title III Amendment Timelines
The Title III NPRM publication date has been extended 7 times since the ANPRM was published in 2011.
|Original Date of NPRM Publication||Changed To||Update Made In|
|January 2012||December 2012||–|
|December 2012||December 2013||–|
|December 2013||March 2014||Spring 2013|
|March 2014||April 2014||Fall 2013|
|April 2014||March 2015||Spring 2014|
|March 2015||June 2015||Fall 2014|
|June 2015||2018 – month TBD||Fall 2015|
While the NPRM publication has been delayed, there is no indication that the DoJ will stop monitoring and addressing litigation against commercial organizations for website accessibility. In fact, the DoJ continues to formulate settlement agreements and issue penalties of up to $150,000 for web and web content accessibility violations and order compensation to complainants as required.
Therefore, large commercial organizations must continue to plan for and execute on implementing accessibility for websites and web content. OpenText provides a software-based automated solution for generating accessible documents in high volumes, e.g. for statements, bills, notices and more. The OpenText Automated Output Accessibility solution enables companies to generate accessible PDFs in WCAG 2.0 Level AA compliant PDF/UA format, eliminating the need for traditional costly and time-consuming manual remediation processes.