But on April 28th, the DOJ took a step back when it withdrew the Notice of Proposed Rulemaking under Title II, which had been sitting with OMB since July 2014. Yesterday, the DOJ followed up with a Supplemental Advance Notice of Proposed Rulemaking (SANPRM) soliciting additional public comment on various website accessibility issues and asking for related cost information for preparing a regulatory impact analysis.

The DOJ indicated that it is particularly interested in receiving comments from all those who have a stake in ensuring that websites of public entities are accessible to people with disabilities or “who would otherwise be affected by a regulation requiring that websites be accessible” (*hint…hint…it’s asking for public comment from all businesses with websites out there that could potentially be considered public accommodations under Title III*).

The SANPRM poses more than 120 questions for public comment. Here are some of the highlights:

• Are there any issues or concerns the DOJ should consider before proposing WCAG 2.0 Level AA as the accessibility standard?
• Are there any existing designs, products, or technologies that would result in accessibility and usability that is either substantially equivalent to or greater than WCAG 2.0 Level AA?
• Should the DOJ address the accessibility of mobile apps and, if so, what standard it should consider adopting?
• Should a lower compliance standard or longer timeline be applied to smaller entities?
• Should the DOJ consider exempting archived content from the accessibility standards and, if so, how should “archived content” be defined?
• To what extent should covered entities be responsible for ensuring that third-party web content (either linked from the site or posted to the site) is accessible?
• Does an effective date of two years after the publication of a final rule strike an appropriate balance of stakeholder interests, or should the DOJ consider different approaches for phasing in compliance?
• Is there technology available now that would allow public entities to efficiently and effectively provide captioning of live-audio content in synchronized media in compliance with WCAG 2.0 Level AA conformance? What are the costs and availability of doing so?

This rulemaking is particularly important for businesses subject to Title III as “public accommodations” as the Title II rulemaking will inform the agency of how it should move forward with its Title III website accessibility rule. Comments on the SANPRM must be submitted by August 8, 2016.

So what does this "step back" mean for the DOJ in issuing a proposed rule to provide Title III businesses with the much needed clarity on website accessibility? Most likely another delay. The DOJ most recently stated that the Title III rule would be released in 2018, but... we're not going to hold our breath in the meantime.

Although these types of cases have been on the rise in recent years, they still come as a surprise to many people who think of the ADA only in terms of physical barriers, like wheel chair ramps and handicapped parking spaces. In many instances, potential plaintiffs are reaching out to companies directly in lieu of filing a class action to effectuate a confidential settlement and revisions to the website to provide for ADA accessibility.

Read our article in Retailing Today for more information.

Specifically, the DOJ alleged that individuals who are blind or have low vision and use screen reader software may not be able to properly use the website or app for various reasons. For example, the images, buttons, and form fields were unlabeled or had inaccurate alternative text; pop-ups were not being reported to screen readers; tables contained missing header information and proper mark-ups; and boldface type was used to show which fields are required. The DOJ also alleged that individuals who are deaf or hard of hearing could not understand videos presented on the website because the captioning is inaccurate; and individuals who had physical disabilities affecting manual dexterity faced barriers on the website because Java script throughout the website was not available to users who are unable to use a mouse.

The settlement with Ahold U.S.A., Inc. and Peapod, LLC, the owners and operators of www.peapod.com, requires the companies to ensure that the website and mobile app conform to the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 Level AA (“WCAG 2.0 AA”). The settlement also requires the companies to ensure that any new content added to the site or app is also in conformance with the requirements of the WCAG 2.0 AA. In addition, the companies must ensure that any vendors providing third-party content on the site or app provide content in a format that conforms to WCAG 2.0 AA or can be made to conform to WCAG 2.0 AA by Peapod.

The DOJ continues to aggressively pursue its enforcement agenda when it comes to ensuring that websites are accessible to persons with disabilities under the ADA. The Agency intends to issue a Notice of Proposed Rulemaking in June 2015 to provide guidance on website accessibility to private parties covered under Title III. Although the DOJ has yet to issue proposed regulations, it is clear from its enforcement efforts that the DOJ views the ADA to apply to both online and in-store places of public accommodations.

The ADA generally prohibits discrimination on the basis of disability and ensures equal opportunity for persons with disabilities. This applies to private sales or rental establishments under Title III of the ADA, such as clothing stores, shopping centers, hardware stores, and grocery stores.

Traditionally, the ADA was thought to apply only to “brick-and-mortar” stores. In more recent years, however, a handful of courts have applied the ADA to online websites, when finding that a “nexus” exists between the e-commerce website and the physical store. This has led to some high-profile settlements. But because courts are split on this issue, there isn’t clear guidance for online retailers.

In light of the uncertainty in this area, the DOJ will issue a Notice of Proposed Rulemaking (NPRM) in November 2013 to provide guidance on this issue to State and local governments under Title II. Although not directly applicable to private entities, this will likely provide insight on how the DOJ will implement the technical standards necessary to comply with the ADA. The DOJ will then issue a NPRM in March 2014 setting forth the scope and standards for private parties covered under Title III.

If you operate a retail website, you should pay close attention to these developments and ensure that your site is in compliance.