On July 26, 2021, President Biden celebrated the 31st anniversary of the Americans with Disabilities Act (the “ADA”), the pioneering legislation which then-Senator Biden originally co-sponsored in 1990, issuing a Proclamation enumerating its commitment to the ADA. Since its inception, the ADA has become “the gold standard for accessibility” for people with disabilities.
On the same day, Attorney General Merrick B. Garland with Kristen Clarke, Assistant Attorney General for the Civil Rights Division, also issued statements commemorating the 31st anniversary and listed various accomplishments and the Department of Justice’s ongoing and anticipated efforts to enforce the ADA and enhance accessibility for people with disabilities. Before reviewing these it is useful to understand the promises and goals of candidate Biden in the run-up to the November 2020 election.
On June 29, 2020, then-candidate Biden spoke by video at a national, nonpartisan Disability and Election Virtual Summit hosted by the American Association of People with Disabilities (AAPD). Highlighting his direct involvement in the many legislative initiatives addressing disability, including the Rehabilitation Act of 1973, the Fair Housing Amendments Act (FHAA) of 1988, and the ADA, Biden expressed his commitment to “full participation and equality for people with disabilities", reiterating that support for equality means "aggressively enforcing civil rights.”
In January 2021, as the new administration was preparing to govern, many predicted that the Department of Justice (DOJ) would take a more aggressive approach in enforcing Title III of the Americans with Disabilities Act (“ADA) in a number of areas.
During the Obama Administration, the DOJ pursued numerous enforcement actions against certain businesses, notably addressing specific instances in which people with disabilities were effectively denied access by businesses to goods and services offered through websites or mobile apps. These efforts were not pursued vigorously during the Trump Administration. The expectation of a Biden DOJ was a return to the Obama administration’s more vigorous enforcement approach.
The Trump administration stopped all pending ADA rulemaking in its tracks in keeping with its overall anti-regulatory approach. In truth, there had not been a great deal of progress on this front during the Obama administration either. As President Obama’s second term wound down there was increased discussion of comprehensive efforts by the DOJ to finally develop standards for web accessibility relating to state and local governments under Title II of the ADA. However, in May of 2016, the DOJ withdrew its Notice of the Proposed Rulemaking. These efforts remained dormant during the Trump administration.
The contrast between the Obama and Trump administrations was stark. The Obama DOJ intervened in a number of important lawsuits, most notably the Gil v. Winn-Dixie case, where the DOJ argued that Title III of the ADA covers discrimination in the delivery of goods and services in a place of public accommodation even though the items were not delivered at that place. The important distinction is key in assessing whether the ADA applies to wholly online businesses.
This and other interventions served as a warning that the DOJ intends to apply pressure upon covered businesses to make websites and mobile apps accessible to people with disabilities. However, to date, the DOJ has not issued long-anticipated comprehensive regulations clearly defining just how and by what standards digital accessibility must proceed. This pressure was absent during the Trump administration.
The July 26 anniversary of the ADA served as a timely platform for Attorney General Garland and Assistant Attorney General Kristen to outline the new administration’s ADA progress. Kristen Clarke summarized the Civil Rights Division’s charge:
“We know that much work remains to be done to achieve fully the goals underlying the ADA, but the department celebrates the progress that the ADA has made possible for millions of Americans while continuing to fight for full access and opportunity for people with disabilities. This is the Civil Rights Division’s charge and this is our promise to every person with a disability across this country. We will not yield until the full measure of rights guaranteed by the ADA is a reality for all.”
The Civil Rights Division noted several examples of settlement agreements where its ADA enforcement efforts have provided “concrete changes in the lives of Americans with disabilities”.
In conjunction with the July 26, 2021 commemoration of the enactment of the ADA, the new administration issued its "FACT SHEET: Biden-Harris Administration Marks Anniversary of Americans with Disabilities Act and Announces Resources to Support Individuals with Long COVID", which describes what the administration calls “significant steps to achieve a more inclusive, accessible, and equitable country for people with disabilities, including people with disabilities that experience multiple forms of discrimination and bias on the basis of race, gender, sexual orientation, and other factors.”
The FACT SHEET highlights, among other things, steps that have been taken primarily through Executive Orders and COVID funding with accompanying benefits for people with disabilities. Key cited efforts and accomplishments include:
Increased access to voting for people with disabilities (Executive Order 14019).
There is no question that the Biden administration is more vocal than the prior administration regarding its commitment to people with disabilities. And while certain concrete steps to enforce the ADA and define its role in more detail have been taken, it is hard not to acknowledge that many benefits flowing to the disabled community are tangential to primary funding addressing the most pressing needs related to the pandemic.
Clearly, the directions mapped out by the Biden administration to improve the lives of people with disabilities are much more definitive than the prior administration’s efforts. Concrete steps however will be what the administration will be judged upon. For example, the DOJ has long been pushed to clearly define the rules and standards for digital accessibility, a safe harbor provision perhaps. Unfortunately, since the Obama administration, the DOJ has failed to create or approve standards for ADA website compliance, a step that many believe would eliminate the rapidly growing number of demand letters and lawsuits
Though extensive efforts have been made by the Biden administration to articulate lofty goals in improving accessibility for people with disabilities, the verdict is still out on how far the administration will be willing and able to go to improve the lives of people with disabilities, particularly in light of today’s pressing economic and pandemic challenges.