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The Online Accessibility Act is a bill introduced into the U.S. House of Representatives on October 1st that seeks to amend the Americans with Disabilities Act (ADA) to provide clear coverage for websites and mobile applications operated by a private entity. The bill is currently tracked as H.R. 8478 and has been referred to the House Committee on Energy and Commerce, and is sponsored by Lou Correa (D-CA) and Ted Budd (R-NC). A PDF of the bill can be found on Congressman Budd’s website.

All in all, our point of view:

  • The bill clarifies how the ADA would apply to websites and mobile applications. That’s good.
  • The bill puts a long administrative procedure in place before people can meaningfully enforce their civil rights under the ADA. That’s bad.
  • The bill would allow “separate but equal” approaches for achieving digital accessibility. That’s bad.
  • The bill would place a huge burden on the U.S. Department of Justice (DoJ) for investigating specific and systemic violations of the proposed law. The DoJ has neither the resources nor the technical expertise for such a responsibility. In our view, meaningful enforcement would require funding on the level of an independent Federal agency, such as the EEOC. The current bill is essentially an unfunded mandate for DoJ and the U. S. Access Board. That’s bad.
  • The bill provides no penalty for non-conformance outside of penalties the DoJ can assess. There’s minimal incentive for covered organizations to proactively implement digital accessibility. In fact, there’s significant incentives and reason for organizations to do nothing and react to an issue if and as it arises. That’s bad.

We’re big fans of amending the ADA and bringing statutory clarity to how digital accessibility “works” in the context of the ADA. As currently drafted, the bill would do a good job of limiting serial lawsuits in the area of digital accessibility. “The catch” is that the serial lawsuits have been very effective in raising awareness on the need to make things accessible and incentivizing proactive conformance with the law. Right now, the act removes that incentive for compliance and doesn’t replace it with anything that would meaningfully drive proactive conformance with the law (bigger fines, shorter administrative process, etc.). So, absent something that meaningfully incentivizes proactive compliance, we expect most organizations will adopt a reactive stance to implementation of the requirements.

A final summary point: this bill requires people that are subject to discrimination to ask for that discrimination to be removed and wait—quite a while—for relief. Under this bill, if a person with a disability goes to a site and finds that it isn’t accessible, they have to send a letter to the organization or file a complaint with the DoJ to ask for the site to be accessible. That then triggers a long administrative process. During that time, the site can be inaccessible—can block real, meaningful access by people with disabilities—and it’s all perfectly legal. If, at the end of a long administrative process, the site isn’t accessible, the person with disabilities then needs to sue the site to finally get relief. That seems a long time to wait, and a lot of hoops to jump through, for a person that is experiencing discrimination. Accordingly, we expect it will have a chilling effect on people advocating for access rights, as we’ve made opposing discrimination far more difficult than perpetuating it.

Putting it another way: imagine a restaurant that refused to seat people of a specific race. The official policy of the restaurant is that people of X race can’t eat there, can’t even come into the building. You are a member of that race. You’re offended by the blatant discrimination. You are, and should be, angry. To get relief though, you need to (i) write the restaurant a letter informing them of their discrimination and detail specific, highly technical areas where they don’t conform to an obscure standard you’re not familiar with, maybe (ii) file a complaint with an understaffed Federal agency to ask them to investigate, and then (iii), if you still want to fight it, file a lawsuit about a year later. All the while the restaurant could keep discriminating while they ran out their administrative clock. Worst case at the end of that time they receive a fine that’s about the same they would have paid to settle a private claim in the first place, and they’re protected from other lawsuits during that period. The framing of this bill needs to ensure such a “do nothing and wait” approach is not a valid strategy for compliance.

What would the bill do?

The bill would amend the ADA to have a Title VI, which would cover “Consumer Facing Websites and Mobile Applications Owned or Operated by a Private Entity.” The general requirement of Title VI—the “General Rule” in ADA terms—is that:

“No individual, by reason of a disability, shall be excluded from participation in or be denied the full and equal benefits of the services of a consumer facing website or mobile application, or be subjected to discrimination by any private owner or operator of a consumer facing website or mobile application.” 

This would mirror the General Rule of Title III of the ADA (42 U.S.C. § 12182 (a)). The catch is that, as currently drafted, this section omits many of the more detailed definitions of “discrimination” present in Title III of the ADA under the General and Specific prohibitions. That’s of particular importance in the area of digital accessibility as it would allow “separate but equal” experiences to conform to the requirements of Title VI. Such an approach, in contrast, is largely barred under the Separate benefit and Integrated settings prohibitions of Title III.

The bill provides a safe harbor for compliance with the requirements of the section if the site or application has achieved substantial conformance with the WCAG 2.0 Level A and AA. The bill also allows for the WCAG requirements to be replaced by a subsequent update, revision, or replacement of the standard. This is ironic in that as of the date of introduction of this bill, WCAG 2.0 has been superseded by WCAG 2.1, its successor standard.

The bill assigns promulgation authority—the authority to make the implementing regulations—to the Access Board. There is then a legislatively imposed timeline for delivering those regulations and reviewing them on a timely basis. A simple reading of the timeline would have regulations being issued around two and half years from passage. In practice, we expect the rule making process will take far longer.

The bill defines an administrative process that needs to be completed prior to filing a lawsuit. This process includes a 90 day “notice” period for the website as well as the ability to file complaints directly with the DoJ during or within 90 days of the expiration of that notice period. If such a complaint is filed with the DoJ, the DoJ then has 180 days to determine if a violation exists.

The DoJ can also certify that a state or local law meets all the requirements of the section. In such cases, if a state wanted to require something above and beyond the Federal requirements they could, and, upon certification, conformance with that standard would be deemed conformance Title VI.

What’s to like?

There’s a fair amount to like in the Act and, if the negatives can be addressed, it could provide meaningful and effective reform.

  • It would bring clarity to the coverage of websites and mobile applications in the ADA. Currently, the scope of coverage for websites and mobile applications under the ADA is unclear. Different jurisdictions, different rulings, different standards for coverage—little clarity or consistency. In some districts and circuits the ADA covers websites and mobile apps, in some it only covers them to the extent there is a nexus with a covered, physical location, and in some they aren’t covered at all. This would clarify what is and what is not covered and bring consistency to it across the U.S.
  • It assigns regulatory authority to the Access Board. The Access Board has the relevant experience and technical ability to implement these regulations and would ensure alignment with the U.S. Federal Government Section 508 regulations. There’s a separate question of whether the Access Board has the staff and resources to implement such a complicated rulemaking. That aside, with the right funding we’d view that as the right place for these regulations to live.
  • It provides more definition around the specificity of complaints. The Act includes the requirement: “any action filed under this title, the complaint shall plead with particularity each element of the plaintiff’s claim, including the specific barriers to access a consumer facing website or mobile application.” The vast majority of lawsuits in the area of digital accessibility are boilerplate in nature. Plaintiff’s firms often use a standard template filled in with a couple of generic claims. These claims can always be fleshed out later in the litigation process if needed. As a practical matter, however, generic claims provide no real notice to the recipient of a demand letter or named defendant about what is actually wrong with the website or application. Requiring the claims to be about specific barriers to access may help address this.

What’s not to like?

The points we like are meaningful and substantive. They’d be a real step forward in the area of digital accessibility. On the flip side though, there are a lot of clear issues with the bill as drafted.

  • It would allow a separate but equal approach to accessibility. Title III provides a variety of general and specific prohibitions on how you can implement accessibility. The bill, as currently drafted, does not. So, a site or application could provide a “separate but equal” experience under this title. Allowing anything other than an integrated approach to accessibility is something the framers of the law were at pains to avoid. Separate but equal approaches to accessibility (i) don’t work and (ii) further stigmatize people with disabilities. The framers of the bill should include similar prohibitions to the Separate benefit and Integrated settings prohibitions of Title III here.
  • It references the WCAG 2.0 standards. The bill defines compliance with the requirements of the section as having been achieved if the site or application conforms to WCAG 2.0 Level A and AA requirements or subsequent update, revision, or replacement of the standard. As of the date of introduction of this bill, WCAG 2.0 has already been superseded by WCAG 2.1, a successor standard. The framers of the bill should move the proposed language to WCAG 2.1 AA.
  • The way it reads right now, it’s not clear that it’s really “90 days” to file a lawsuit. Upon initial reading my take away was, hey, you can file a complaint with an organization, wait 90 days for them to address the compliant or not, and then you have the option of either going to the DoJ or pursuing private litigation. I think that’s actually the intent of the law.
    • In practice, though, it’s seems a smart defendant would get a notice, wait 89 days, and then file a complaint with the DoJ to complete an investigation. The DoJ investigation would then take up to another 180 days if the DoJ completed the investigation in the statutorily defined timeframe. If the DoJ didn’t get it done in 180 days, the plaintiff could move forward with litigation at that time.
    • If you think about it, that effectively gives you a period of around 270 days where a non-compliant site is protected by administrative procedures. That’s three quarters of a year for an issue—digital accessibility—that the market has been aware of for over five years.
    • As noted, the framers of the bill may have intended that the individual filing the compliant with the DoJ be the same individual that provided notice to the company. Currently, to me at least, it doesn’t read exactly like that and allows for some potential abuse of the system by those (potentially) under investigation.
  • The ability of the DoJ to enforce this law is limited. The idea of giving the DoJ a primary role in investigation and enforcement of digital accessibility complaints, initially at first, seems laudable. In practice, though, there are a variety of barriers to this working. Let’s take those in turn.
  • Enforcement becomes subject to the agenda of the current administration. The current administration is a case study in discretion in DoJ enforcement. Over the last four years we’ve seen DoJ enforcement of the ADA in the area of digital accessibility massively fall. The protection and enforcement of civil rights shouldn’t be something an administration has large amounts of discretion over. Civil rights should be protected by independent, well funded institutions.
  • The funding and staff aren’t remotely there. The Office of Civil Rights at the DoJ isn’t a giant office with large numbers of attorneys. It’s a relatively small enforcement office in a big department. For context, on ADA.gov the DoJ published 20 different settlements it was a party to this year. In comparison, our estimate is there are on the order of 20,000 private settlements in the area of digital accessibility on an annual basis. So, by placing this on the current DoJ enforcement docket we’d potentially see enforcement drop by around 1000x.
  • WCAG conformance is difficult to determine. I’ve been in the business of digital accessibility for over 20 years. I’ve diagnosed thousands of website and applications against WCAG 1.0, 2.0, 2.1, and a dozen other digital accessibility standards. We’ve built the largest company in the digital accessibility market that provides these kinds of services. It’s difficult, tricky, highly specialized work that requires a lot of infrastructure, training, and personnel development to get right. The DoJ staff are litigators. They aren’t—nor would they have a desire to be—technical experts. So where is that technical expertise going to come from? How is it going to get funded?
  • This is all unfunded. The DoJ could build up a large division with the technical expertise to enforce this. The bill could spin up a reasonably funded, independent Federal agency to enforce the administrative approach in a similar vein to the EEOC. The bill, however, doesn’t do any of that. There are no earmarked funds for this or direction to the DoJ to do this in any particular way. We’ve seen what happens with other unfunded digital accessibility mandates with no real enforcement model. They don’t go anywhere.
  • The damages for websites and mobile applicationsarguably key aspects driving the incentives to conformare much lower than the current Title III penalties. Under this bill the DoJ can issue penalties of $20,000 for a first offense and up to $50,000 for every subsequent offense. For context, under Title III, the DoJ can obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation. So, these penalties are much lower than the current penalties.
  • There are no damages for private lawsuits under this Title. As with Title III, only the DoJ can assess penalties with the proposed Title VI. Private parties can’t pursue damages. That’s similar to the structure of ADA Title III, but that title (as noted above) is materially more well developed than this title and allows private action immediately. This bill asks people with disabilities to accept a long administrative process before being granted their civil rights with no added risk of non-compliance to the businesses.
  • The limits on when lawsuits can be filed don’t go into effect until after the regulations are issued and effectivethat will take a long time. Once the law is passed the regulatory process would start, but the process would take, roughly, two and a half years to complete if it proceeds incredibly rapidly. More likely, given what we would expect is massive interest in the regulations, it’ll take five years to fully complete. For context, the 508 Refresh—the last big digital accessibility regulation from the Access Board—took about ten years to draft and publish. That’s not a dive on the Access Board (although I’ll give a plug for more funding for that organization). That’s because digital accessibility is complicated and there’s a lot of points that need to be considered in such a seemingly simple rule making such as this. There is the concept of “Tolling” in the bill which doesn’t put the administrative filing delay for lawsuits into place until after regulations are issued. That noted, we’d still be in a limbo until those regulations are issued. What does “substantial compliance with the WCAG” mean, being just one of many questions. That runs the risk that companies can defend non-compliance by noting that regulations have yet to be issued and, therefore, they cannot be held to any standard in the meantime.
Originally posted on Linkedin