By:  Alisa N. Carr, Esq.

On November 3, 2016, United States District Judge Mark G. Matroianni (D. Mass.) entered an Order denying Motions filed by Harvard University (“Harvard”) and the Massachusetts Institute of Technology (“MIT”) to dismiss or stay ADA Website Accessibility litigation filed by the National Association of the Deaf (“NAD”) against the schools for the alleged inaccessibility of their respective websites. See National Association of the Deaf, et al. v. Harvard University, Civil Action No. 15-cv-30023-MGM (D. Mass., Document 77).

Sued in 2015 for failing to have their online audio and audiovisual content closed captioned, Harvard and MIT cited the failure of the Department of Justice (“DOJ”) to promulgate technical standards regarding website accessibility in support of their request to stay the litigation. Arguing that formal rules published by the DOJ regarding website and online video accessibility are necessary to provide consistency and guidance as to “[w]hether, how and under what circumstances websites and online videos should be made accessible”, the schools asked the District Court to delay adjudication of the current ADA litigation pending publication of the technical standards by the DOJ. Id., Document 24.

In adopting the Magistrate Judge’s Report and Recommendation to deny the Motions to Dismiss, the District Court held that a stay is not necessary:

[t]he court does not need the DOJ’s technical expertise to resolve the issue at hand. Federal courts are experienced in interpreting the ADA and Section 504, and statutory interpretation is routine practice. See DOJ Statement of Interest at 2  (“For more than two decades, federal courts have resolved effective communications claims alleging unequal access to goods, benefits, and services provided through websites or other electronic media.”). Furthermore, the agency’s future rule will not materially aid the court. The court is aware of the DOJ’s opinion on the issues, having reviewed the DOJ’s Statement of Interest. Lastly, the court finds staying this case impractical. The DOJ does not have a projected date of issuance. Rather, it expects to issue its rule “at some point in the future.” Id. The court finds this indeterminate estimation insufficient to warrant a stay.

Id. Document pp. 3-4.

The DOJ’s decision to delay publication of technical standards until 2018 has not abated the number of lawsuits and pre-litigation notice letters issued to public accommodations alleging website inaccessibility. Covered entities that maintain websites, especially e-commerce sites, are encouraged to continue, or begin, a review of their website’s ADA accessibility to prevent costly litigation.

If you have any questions regarding ADA litigation, accessibility issues for public accommodations, or ADA Website Accessibility Litigation, contact Alisa N. Carr. Alisa is a Partner in Leech Tishman’s Litigation Practice Group and is based in the Pittsburgh office. Alisa can be reached at 412.261.1600 or acarr@leechtishman.com.

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