CHICAGO — In the wake of the Trump administration's decision to stop drafting new regulations on the accessibility of "websites, furniture and non-fixed equipment," a labor and employment attorney says this area of law could remain open for a while, as the courts work through the questions in a patchwork of judicial decisions.
“Those decisions will very likely be inconsistent across judicial circuits on some key issues,” said Minh Vu, with Seyfarth Shaw LLP. “In the meantime, plaintiffs will take advantage of the uncertainty and file more lawsuits.”
Vu has followed the matter since the Trump administration decided to switch up the Obama administration rules on July 20, 2017. According to the Department of Justice, “the department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA."
This could be relevant for an ADA website compliance case that is currently pending in Florida regarding blind plaintiff Juan Carlos Gil, who filed 70 separate lawsuits against the big brand food store Winn-Dixie for allegedly not having an accessible website for the visually impaired. Vu said whether or not the DOJ rulemaking withdraw will affect the Winn-Dixie lawsuit is not clear, as the case has been considered to be the first of its kind to go to trial.
“The Winn Dixie verdict is only one district court decision, and it is on appeal,” Vu said. “That said, because it happens to be the only federal website accessibility lawsuit that was litigated to judgment so far, it will continue to be viewed as a significant case.”
Other lawsuits have been brought in other courts, including in Chicago, where plaintiffs sued such brands as McDonald's, Groupon, Kmart and Sears, among others. Some of those cases have been settled in recent weeks.
As with ADA website regulations, those pertaining to furniture and non-fixed equipment will also be continuously revised.
“While some types of fixed equipment and furniture are explicitly covered by the ADA Standards for Accessible Design, there are currently no specific provisions in the ADA regulations that include standards governing the accessibility of equipment and furniture that are not fixed,” according to the Federal Register.
The attorney said while some commerce is “for the most part” better off minus these rules, they do need to take notice that the absence of technical standards does not automatically mean that there are no ADA requirements that must be followed to avoid litigation.
“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,” Vu wrote in a blog post, adding that “this latest development just confirms what we predicted would happen during this administration, albeit with more finality than we had anticipated.”
However, when it comes to website accessibility, the attorney said the judicial system is sure to see future litigation.
“We expect the number of website accessibility cases to continue to increase for at least another few years, unless Congress decides to intervene,” Vu said.