By: Minh N. Vu

Seyfarth Synopsis: The Justice Department withdraws pending rulemakings for accessible websites, furniture and non-fixed equipment.

The current Department of Justice’s (DOJ) regulatory approach to Title III of the ADA is yet another example of what a difference an election can make.

In 2010, the DOJ started the rulemaking process to issue new regulations about the websites of public accommodations and state and local governments, as well as non-fixed equipment and furniture used in public accommodations. In July of this year, the DOJ placed these rulemakings on the “inactive list”. On December 26, 2017, these rulemakings will officially be withdrawn.

On the web access rules, the DOJ stated that it is “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate. Such an evaluation will be informed by additional review of data and further analysis. The Department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.” This is an unfortunate development for the disability community and covered businesses alike. Instead of having clear rules to follow, businesses will have to look to the constantly evolving patchwork of decisions coming out of the courts for guidance. Meanwhile, the number of website accessibility lawsuits continues to surge as businesses scramble to make their websites accessible.

With regard to the withdrawal of the rulemaking about non-fixed equipment and furniture, DOJ said that it is “reevaluating whether regulation of the accessibility of non-fixed equipment and furniture is necessary and appropriate.” We see far less litigation on this topic although advocacy groups may feel the need to press the litigation agenda more aggressively now that no rules are forthcoming. Businesses are, for the most part, better off without these rules but they need to remember that the absence of technical standards does not necessarily mean there are no obligations under the ADA with regard to these items. Title III of the ADA contains a general non-discrimination mandate and more general rules that still require a public accommodation to ensure access to all its goods, services and benefits, subject to certain defenses.

This latest development just confirms what we predicted would happen during this administration, albeit with more finality than we had anticipated.

Edited by Kristina M. Launey