- New accessibility law is being proposed to redress deficiencies in the current Americans with Disabilities Act (ADA).
- The current accessibility law makes it difficult for users to seek changes and has also fostered abusive litigation due to lack of clarity.
- The latest proposed bill, the Online Accessibility Act, did not pass Congress which means new legislation will need to be proposed.
Update: In January 2021, the Online Accessibility Act (OAA) failed to pass in Congress. It is likely we will see similar legislation introduced to address web accessibility.
The Online Accessibility Act is a bipartisan bill that was introduced into Congress on October 2 by Congressman Lou Correa (D-CA) and Congressman Ted Budd (R-NC). The bill amends the Americans with Disabilities Act (ADA) to specifically “include consumer facing websites and mobile applications owned or operated by a private entity and to establish web accessibility compliance standards for such websites and mobile applications, and for other purposes.”
The intent of the Online Accessibility Act is to both increase web accessibility and reduce rampant web accessibility litigation.
In a statement, Rep. Budd said, “Last year, over 2,000 website accessibility lawsuits were filed by plaintiffs alleging that certain websites were not ADA compliant. This bill solves the problem by providing guidance to businesses on how to bring their websites into compliance. If our bill is passed, job-creators will be able to avoid costly lawsuits and be given a roadmap for how to help their disabled customers access online content.”
While many details and requirements remain to be fully defined, current standards in the proposed accessibility law would require conformance with WCAG 2.0 Level AA, or “any subsequent update, revision, or replacement to the WCAG 2.0.”
Specifically, the bill states:
“…if such website or mobile application is in substantial compliance with the Web Content Accessibility Guidelines (referred to in this title as WCAG) 2.0 Level A and Level AA…or any subsequent update, revision, or replacement to the WCAG 2.0.”
First, while incorporating WCAG 2.0 AA is solid, we would like to see WCAG 2.1 AA used as the standard.
WCAG 2.1 AA has been in existence for over two years and is widely accepted. Also, 2.1 AA greatly improves accessibility and usability – particularly on mobile devices.
It’s also important to note the “substantial compliance” language. This is critical because it acknowledges that complete conformance to accessibility law is extremely difficult to achieve — especially because 1) there’s a subjective component to some aspects of accessibility and 2) conformance with some of WCAG’s success criteria can take significant time / money to reach.
The bill goes on to clarify:
“The Access Board shall issue and publish…a definition of ‘substantial compliance, alternative means of access, and consumer facing website or mobile application and regulations necessary to implement the standard.”
This is good news – it means that compliance requirements will be left to experts to define and decide. However, it’s important to note that it will likely take close to two years before the Access Board issues their final regulations.
As it stands, there are a few notable flaws in the bill that need to be addressed.
For instance, the extended process by which it takes to file a complaint against an entity who is in non-compliance is extremely problematic.
Currently, prior to filing a complaint, an individual must first notify the private owner or operator they are not in compliance with the existing accessibility law. If within 90 days, the owner doesn’t bring their website and/or app into compliance, then the individual may file a complaint with the Department of Justice (DOJ).
- A complaint shall be filed within 90 days after those initial 90 days expire
- The DOJ has 180 days to determine whether a violation of accessibility law exists
- If the DOJ doesn’t make a final determination, then that lack of determination is a determination
After an individual goes through the above process, only then can they commence private action against the entity.
As accessibility advocates, we think this is a horrible approach. Of course, we want abusive litigation to stop, but the bill’s complaint process, as it stands, disincentivizes website owners from embracing digital accessibility.
The bill also states:
“A private entity that owns or operates a consumer facing website or mobile application that is not in substantial compliance with the standard set forth…shall provide an alternative means of access for individuals with disabilities that is equivalent to access the content available on such website or mobile application.”
While WCAG does permit some conformance alternatives, these are inapplicable to the vast majority of websites. Thus, the bill needs to be edited for clarification on exactly what this means.
While the Online Accessibility Act is a long awaited indication of formal guidance on web accessibility, the process for taking action against websites that are not compliant under accessibility law must be revised.
As digital accessibility becomes increasingly important, we need accessibility laws and regulations that advance accessibility, not take steps back.
The good news is that formal action has been initiated and the makings of a potentially strong accessibility law are in the mix. Once a few key sections are revised, the Online Accessibility Act could be a great amendment to the ADA.
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This post was based on analysis of the Online Accessibility Act from Kris Rivenburgh, our Chief Accessibility & Legal Officer.
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