ADA and FHA Defense

On June 23  the Small Business Administration’s Office of Advocacy called on the Department of Justice to go beyond its recent one year pause on Title II website regulations and simply scrap them entirely. See, Advocacy Recommends. The legal justification is astonishing – SBA claims that under the latest Supreme Court authorities, Loper Bright Enterprises v. Raimondo and West Virginia s. EPA, the Department of Justice cannot make regulations “because Congress has not clearly authorized regulations in this area.” Section 12134 of the ADA requires that the Attorney General “promulgate regulations in an accessible format that implement” Title II of the ADA, which is the part of the ADA that governs state and local government accessibility.  Congress has clearly authorized regulations, so why not website regulations? Perhaps because the ADA doesn’t apply to local government websites.

More important for most of my readers, this same argument seems to apply to Title III of the ADA, which covers most businesses. In fact, the SBA’s press release prominently mentions the detrimental effect of the regulations on small businesses. Section 12186(b), which is part of Title III, uses the same language as Section 12134 to require regulations from the Department of Justice (although it is a little confusing because there are special provisions related to transportation). If DOJ is not authorized to issue Title II regulations concerning website accessibility then it almost certainly isn’t authorized to issue Title III regulations concerning website accessibility either.

I would love to see the SBA internal memo that explains its conclusions, but it seems clear that the Trump Administration is not unified on the question of website accessibility regulations. DOJ’s delay in implementing the Title II regulations made sense as a recognition of the technical complexity, but there was no hint that there would be no regulations at all. The postponement of any effort at Title III regulations also made sense, or at least was justified, based on the argument that the Title II regulations would be a testing ground for later Title III regulations. In either case DOJ seemed committed to the idea of regulating website accessibility even if it was slow to do so.

The SBA recommendation also makes a good point apart from whether the regulations are authorized at all. It writes:

Advocacy recommends that the DOJ consider exempting small governments with a population of fewer than 10,000 from this rulemaking. Advocacy also recommends that the DOJ provide safe harbors to reduce litigation risks to small governments.

These points should apply with equal force to small businesses and the need for a safe harbor. ADA website litigation is driven in part by the existence of enormously complicated technical standards that cannot, as a practical matter, be met with a website that has constantly changing content, which is true of almost all business websites. These standards also make no distinction between requirements that are necessary for a disabled person to do what the website is for (such as buy something) and those that are secondary to the main function (such as links that allow a visitor to “Like us on Facebook!”).  DOJ would be doing businesses, especially small ones, a favor if it promulgated regulations that did not simply adopt WCAG 2.2 AA technical standards wholesale as the Title II and earlier proposed Title III regulations had done. Instead, if DOJ is going to regulate, it should adopt regulations that distinguish between elements essential for the use of the website for its purpose and elements that are secondary. This would not completely solve the problem of industrial scale litigation driven solely by the desire of lawyers to make money,  but it would help.

Finally, the SBA announcement is likely to be more than the opening shot in a battle between agencies about the limits of regulatory authority. I suspect that underlying the argument about the power to regulate is an argument that the ADA simply does not cover websites, an argument accepted by the Courts of Appeal in several circuits with respect to Title III entities. Presented as an argument about regulatory authority the question of whether Congress intended the ADA to cover websites may finally make it to the Supreme Court.