Rule Requiring ADA-Compliant Websites Expected

January 11, 2011

The U.S. Department of Justice (DOJ) has issued several advance notice of proposed rulemakings (ANPRM) in regard to theAmericans with Disabilities Act (ADA). The ADA, which was signed into law in 1990 by President George H.W. Bush, prohibits discrimination against the disabled and requires public accommodations to be accessible to them.

The most-recent ANPRM would require businesses to make their websites accessible to disabled people. The ANPRM indicates that the proposed rule likely would apply to online-only businesses as well.

The ANPRM identifies a number of “barriers to accessibility” that it seeks to address, specifically websites that “fail to incorporate or activate features that enable users with disabilities to access all the site’s information or elements.” Examples of this include:

• websites that are not configured for the use of speech recognition software, which is relied on by many individuals who do not have use of their hands;

• websites that do not allow font color and size to be adjusted to accommodate the visually impaired;

• websites that do not provide captions for pictures, videos, or other multimedia presentations, which prevents “screen readers” from reading the information aloud to individuals who cannot see;

• websites that require timed responses but do not provide an option for those whom more times is needed; and websites that require timed responses from users, but do not provide an option for a user to indicate that more time is needed; and

• websites that rely on CAPTCHAs (Completely Automated Public Turing Test to Tell Computers and Humans Apart – the distorted text that many websites require users to input before completing a transaction).

For new websites or webpages, the DOJ currently is considering making any final rule effective six months after its publication. The agency is considering requiring existing websites and pages to be compliant two years after the publication of its final rule.

NSBA Concerns

While supportive of the ADA and its objectives, NSBA fears the rules being considered could result in a sweeping and overwhelming mandate for America’s small-business owners. The rules under consideration also could impair existing Internet commerce and hamper economic growth.

Draconian rules that fail to reflect the size, financial, and technological limitations of small firms, especially online-only small businesses, could result in the shuttering of many sites. Many entrepreneurs run their small businesses on the side. If the cost of building or maintaining a website becomes to burdensome, many of these small-business owners simply will close shop

While the DOJ argues that it has been its position since the late 1990s that Title III of the ADA applies to websites, a number of lawsuits dating from the late 90s, pushed the agency to codify that the ADA grants disabled people access to both physical and electronic areas of public accommodation.

In its announcement, the DOJ wrote: “The ADA’s promise to provide an equal opportunity for individuals with disabilities to participate in and benefit from all aspects of American civic and economic life will be achieved in today’s technologically advanced society only if it is clear to State and local governments, businesses, educators, and other public accommodations that their Web sites must be accessible.”

While the advance notice of proposed rulemaking is a preliminary, information-gathering step, a notice of proposed rulemaking will be forthcoming. In the meantime, the DOJ needs to hear from small firms about how such a rule would impact their business.

Specifically, the ANPRM poses a series of 19 questions, including several relating to small firms. In particular, Question 11 asks: “[S]hould the Department’s regulation initially apply to entities of a certain size (e.g. entities with 15 or more employees or earning a certain amount of revenue…?” The agency also is interested in hearing from small-business owners about the effective dates under consideration.

According to sources, the DOJ has received very little small-business feedback to the ANPRM.

While NSBA will be submitting comments on the ANPRM, it also encourages its members to do the same. Also, pleaseclick here to send a copy of your comments to NSBA.

For more information on the proposed rulemaking, please click here.

Comments are due by January 24, 2011.