ON DECEMBER 26, 2017, the Department of Justice (DOJ) formally withdrew its Notice of Advanced Rulemaking regarding website compliance with the American Disabilities Act (ADA), plac-
ing it on its “inactive list” (82 FR 60932). ADA website accessibility regulations
under Title II (for state and local governments) and Title III (for businesses
open to the public) had been planned for 2017 and 2018, respectively, before
the DOJ marked them as inactive. In an official announcement, the DOJ stated:
“The Department is evaluating whether promulgating regulations
about the accessibility of Web information and services are necessary
and appropriate. Such an evaluation will be informed by an additional
review of data and further analysis. The Department will continue to
assess whether specific technical standards are necessary and appro-
priate to assist covered entities with complying with the ADA.”
With the DOJ’s withdrawal from rulemaking, financial institutions are
left with an unclear standard for compliance while applicable ADA lawsuits
continue to proliferate. Irrespective of the DOJ’s action, financial institutions
must still be cognizant of the state and federal case law regarding ADA website
compliance. Case law is often split on the issue, but the trend is leading more
toward ADA accommodations.
The lack of any implementing regulations does not appear to be a defense
for non-compliance. A California federal court granted a defendant’s motion
to dismiss finding the failure of the DOJ issue clear guidelines for website
compliance violated defendant’s due process rights, as in Robles v. Domino’s
Pizza, Case No. CV 16-06599 SJO (SPx), (C.D. Cal. March 20, 2017). Simi-
larly, in Access Now, Inc. et al v. Blue Apron, LLC, Case No. CV 17-cv- 116-JL,
Opinion No. 2017 DNH 236 (November 8, 2017), the Federal District Court
judge, Judge Laplante, reiterated:
“[t]he lack of specific regulations does not eliminate [the defendant’s]
obligation to comply with the ADA or excuse its failure to comply
with the mandates of the ADA.”
Judge Laplante also summed up why accessibility is not dependent on
“In a society in which business is increasingly conducted online,
excluding businesses that sell services through the Internet from the
ADA would ‘run afoul of the purposes of the ADA’” in that it would
prevent “individuals with disabilities [from] fully enjoy[ing] the
goods, services, privileges, and advantages, available indiscriminately
to other members of the general public.”
The human issue behind all the litigation is that people with disabilities
require the same access to financial products and services as anyone else,
especially where technology plays a vital role in a financial institution’s offerings.
Currently, the only official standard for website accessibility applies to
federal agencies, which includes the DOJ. The standard requires agency
websites to be accessible to people with disabilities and conform to the Website
Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA) standard. The
standard was developed by W3C, an international consortium comprised of
individuals and organizations from around the world, with a goal of provid-
ing a single shared standard for web content accessibility that meets the
needs of individuals, organizations, and governments internationally
( www.w3.org/WAI/intro/ wcag.php).
While WCAG 2.0 AA is the only official standard regarding websites,
the standard is an industry best practice for Title II and Title III employ-
ers, including financial institutions, striving to comply with the ADA. It
explains how to make web content more accessible to people with dis-
abilities. Web “content” generally refers to the information in a web page
or web application, including the natural information
such as text, images, and sounds as well as the code
or markup that defines structure, presentation, and
similar layout design.
The guidelines are a stable, referenceable techni-
cal standard, designed more for the web
developer than the end-user.
There are twelve guidelines
that are organized under
four principles: perceivable,
The four primary
■ ■ ■ Provide text alternatives for
■ ■ ■ Provide captions and other
alternatives for multimedia.
■ ■ ■ Create content that can
be presented in different
ways, including by assistive
technologies, without losing
■ ■ ■ Make it easier for users to see
and hear content.
■ ■ ■ Make all functionality available
from a keyboard.
■ ■ ■ Give users enough time to read
and use content.
■ ■ ■ Do not use content that causes
■■ ■ Help users navigate and find
■ ■ ■ Make text readable and understandable.
■ ■ ■ Make content appear and operate in predictable ways.
■ ■ ■ Help users avoid and correct mistakes.
BY LEAH M. HAMILTON, J.D.