This week two ADA writers I follow, Marc Dubin and William Goren, looked at the problem of telling just what the ADA requires. Both concluded that in some respect the only way to know was to look at the latest private settlements between the Department of Justice and various businesses it investigates. You can know the statute, you can know the regulations, you can read the various guidances, but if you don’t keep track of what the DOJ is doing when it settles its private investigations you really don’t know what to do in many cases. The National Association of the Deaf, an advocacy group, recently wrote on the requirement of closed captioning in audio and audiovisual presentations (nad.org). With a few exceptions governed by statutes other than the ADA the best the N.A.D. could say was that closed captioning “may” be required or that the situation is uncertain.
This uncertainty is great for lawyers and consultants. Like most folks in the ADA and FHA consulting business Marc, William and I follow the DOJ and HUD press releases that announce their settlements, and receive updates on their regulatory initiatives. For businesses, on the other hand, it stinks. Not only is a business required to constantly pay consultants to help it comply with the ADA, it will frequently be told by the consultant that the only answer comes from reading the tea leaves and guessing what the DOJ’s position will be when and if it finally publishes a definitive regulation. Even that guess comes with a warning: the DOJ’s position in a private settlement is not binding on private litigants or the courts, so doing what DOJ appears to want won’t help a business that is sued by a disabled individual.
This uncertainty comes in part because of a regulatory process that seems hopelessly bogged down. Web accessibility regulations have been in the making for years, but the issue is still being studied. The current 2010 Standards for accessibility were originally published in the 1990′s and parts were not in effect until 2013. Haste is never good when faced with complex problems of accessibility, but when the wheels of justice grind too slowly one has to ask whether there is a systemic problem.
More important, every time the Department of Justice delays the promulgation or implementation of a regulation it creates uncertainty and expense for business. Remember, the requirements of the ADA statute apply regardless of the existence of regulations, and when the DOJ does not act private litigants have free reign to argue that it means whatever appears in their interest. DOJ itself has the same freedom, for it can change its own policies for prosecution and settlement without any oversight by the courts.
Why the DOJ has decided to act through private settlements rather than regulation is an interesting subject for speculation, but there is little doubt that the only people who benefit are lawyers and consultants. The disabled suffer the delay in promulgation and implementation of regulations that may benefit them while businesses suffer the uncertainty and expense that come from never knowing quite how to spend their money on accessibility. Although it may be impossible given the bureaucratic love of delay found in most government agencies, reform should be on the agenda for both Congress and the Executive branches.