While the current administration may still be unwilling to concede the election, it appears there will indeed be a new administration in charge at the Department of Justice (DOJ) come January 20, 2021. How will the Biden Administration approach Title III of the ADA and its enforcement? We think there will be much higher engagement – and likely more aggressive enforcement – on multiple fronts.
Enforcement. Under the Obama Administration, the DOJ aggressively pursued enforcement actions against businesses regarding the alleged inaccessibility to people with disabilities of technologies that businesses use to provide their goods and services to the public – especially websites and mobile apps. During the Trump Administration, we saw virtually no new investigations about websites or mobile apps that were not accessible to people with disabilities. And, investigations that were pending under the Obama Administration went dormant under the Trump Administration. We expect the Biden Administration to resume the aggressive approach to enforcement taken by the DOJ during the Obama years on this issue
As a result of increased enforcement, businesses should expect DOJ to demand higher monetary damages and civil penalties (presently the ADA authorizes maximum penalties of $96,384.00 for a first violation and $192,768 for a subsequent violation) and more onerous remedial terms.
Regulations. Consistent with its anti-regulation policy, the Trump administration put the kibosh on every ADA Title III rulemaking that was pending. Granted, many of those saw little progress under the Obama Administration (including, notably, proposed regulations adopting accessibility standards for public accommodations’ websites under Title III), but there is a real chance that some rulemakings will be revived under the Biden Administration. At the end of President Obama’s term, there was more rulemaking activity around issuing accessibility standards for the websites of state and local governments covered by Title II of the ADA. Perhaps the Biden Administration would revive that rulemaking. Rulemaking efforts that were also in progress at the end of the Obama DOJ’s tenure (and withdrawn by the Trump DOJ), such as on non-fixed equipment and furniture may likewise resurface. The Obama DOJ squeezed in a final rule on movie captioning audio description on the way out the door in late 2016.
Technical Assistance. The Trump DOJ put out very few technical assistance documents which historically have been a valuable source of guidance to help businesses understand and comply with the ADA and its implementing regulations. We anticipate seeing more technical guidance from the DOJ in the coming years.
Intervention in Pending Lawsuits. The Trump Administration rarely intervened in ADA Title III lawsuits – in contrast to the Obama DOJ (for example, see here and here). We expect the DOJ to resume its practice of intervening on behalf of plaintiffs in important lawsuits and to push the boundaries of the law in ways that will impose greater obligations on covered entities.
Legislative Reform. There have been some short-lived attempts at ADA reform in Congress over the past four years, including the ADA Education and Reform Act, the ADA Notification Act, and most recently, the Online Accessibility Act, and even letter writing efforts between members of Congress and the DOJ. These efforts have not gained much traction because they did not receive support from disability rights advocates. We do not see that situation changing during a Biden Administration.
Given the forthcoming more aggressive enforcement environment, businesses should very seriously consider whether their ADA Title III compliance programs are sufficiently robust, particularly with regard to their digital assets.