On September 25 the Department of Justice responded to a congressional plea for regulatory guidance with a firm “no.” In its letter to Congressman Ted Budd DOJ made it clear that it had no intention of restarting the regulatory process it abandoned last year and that it did not believe regulations were necessary or desirable. It did say that in the absence of regulation the failure to meet an industry standard like WCAG 2.0 AA is not necessarily proof of an ADA violation. This allows businesses to prove (if they can) that despite not meeting that or some other standard their business websites are accessible.
Good news? Maybe partly good news? It is certainly good news for lawyers and consultants because proving a website is accessible in the face of a lawsuit will undoubtedly take months or years and tens or hundreds of thousands of dollars in legal and consulting fees. It’s good to know you can win, but winning always has a price tag. In website accessibility litigation that price tag is going to be a large multiple of the cost of settlement, particularly since DOJ’s position makes it almost impossible to win a website accessibility case without a full blown trial.
This is the problem with no regulation. It continues the unhealthy ADA litigation dynamic in which more money goes to the lawyers than is spent on accessibility. Accessibility is always the ultimate goal for both business and the disabled, so every dollar spent on lawyers fighting over just what accessible means is a dollar wasted. Certainly nothing positive comes from arguing about what “accessible” means when we have a government agency charged with answering that question and a complete set of regulations that were abandoned on the eve of being adopted.
We love defending these cases and fighting for our clients’ rights, but we are realists as well, and it would be far better to have fixed accessibility standards to define the battle than it is to have a dispute between experts about just what accessible means and the risk that at the end of the day the Court will decide on a standard that is unachievable or absurdly expensive.
When the ADA was originally passed Congress made it perfectly clear that DOJ was required to promulgate accessibility regulations and that accessibility lawsuits could not begin until those regulations were published and businesses knew exactly what was expected of them. It was a mistake that defied Congressional intent when DOJ first asserted that the ADA covered websites without simultaneously defining accessibility, and this latest poke in the eye of Congress and the business community only continues a decades long trend. Hopefully this is only round one, and Congress can get DOJ and the administration to recognize that in this case regulation is as good for business as it is for the disabled.