In 2021 The Proposed Online Accessibility Act in US Congress is [STILL] Bad for Digital Inclusion

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[APRIL 3, 2021 UPDATE] On February 12, 2021, the (so-called) Online Accessibility Act was re-introduced in the United States Congress. This proposed law is identical to the bill introduced last year. It has all the problems of last year’s bill described on this page. [Original article summary begins here:] This is an article about a proposed change to the ADA in the United States. Two members of Congress have introduced a bill to limit the ADA and how it applies to technology. The ADA already applies to websites and mobile apps. Disabled people can now file a lawsuit to make sure they can use websites and apps. The new law would not allow a private lawsuit until a disabled person first went to the Department of Justice. This would take time and delay fixing a website. Lawsuits have been important to making the ADA work for 30 years. It is not fair to limit disabled people’s civil rights.

a name plate reading "Legislation" in front of a legal gavel

[APRIL 3, 2021 UPDATE] On February 12, 2021, the (so-called) Online Accessibility Act was re-introduced in the United States Congress. This proposed piece of legislation is identical to the bill introduced last year and has all the problems of last year’s bill described in the article below.

The 2021 bill was reintroduced by Congressperson Ted Budd, a North Carolina Republican, who introduced last year’s bill too. The press release announcing this year’s efforts to limit ADA lawsuits in the digital space is titled Rep. Ted Budd Introduces Bipartisan Legislation to Stop Frivolous Lawsuits..

Readers of this website know my concerns with a certain type of lawsuit in the digital space. This bill, for all the reasons below, limits the civil rights of disabled people in the digital space. It is not a fair or ethical way to address those concerns.

You can read the 2021 version here. Thanks to the Seyfarth Shaw adatitleiii blog post on this bill that alerted me to its re-introduction.

[JANUARY 10, 2021 Update: The bill described in this article failed to pass the U.S. Congressional Session that ended on January 3, 2021. Another bill can be introduced again, but with a Democrat in the White House and Democratic control over the House and Senate, it is unlikely a bill with the flaws described here will become law. Read an article on the Society for Human Resource Management website that alerted me to the bill’s demise.]

[ORIGINAL article begins here] On October 1, 2020 a “bill to amend the Americans with Disabilities Act” was introduced in the United States House of Representatives. Titled the “Online Accessibility Act” with the number H.R. 8478, the opening paragraph might sound appealing to advocates for digital inclusion. A deeper look reveals dangerous legislation for those who care about civil rights of disabled people in the digital age. I seriously doubt this bill will become law. It shouldn’t.

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What’s wrong with this bill

The ADA already includes websites and mobile applications

The new bill is framed as a step forward for digital inclusion and as an expansion of the Americans with Disabilities Act. More accurately it should be called a bill to limit web accessibility coverage and lawsuits.

The opening paragraph describes it as a bill…

To amend the Americans with Disabilities Act of 1990 to include consumer facing websites and mobile applications owned or operated by a private entity, to establish web accessibility compliance standards for such websites and mobile applications, and for other purposes. introduction to proposed U.S. legislation

The first red flag of this legislation is that the ADA already “includes consumer facing websites and mobile applications owned or operated by a private entity.” As I wrote in my ADA 30th anniversary post the ADA has provided a strong foundation for digital accessibility for decades:

As early as 1996 the United States Department of Justice recognized the importance of web accessibility. Read DOJ Civil Rights head Deval Patrick’s 1996 letter to Senator Tom Harkin on web access. In 2000 the DOJ told an appellate court that “Commercial business providing services solely over the internet is subject to the ADA’s prohibition against discrimination on the basis of disability.” Digital Accessibility Legal Update: ADA anniversary edition (July 19, 2020)

In recent years, courts across the country have recognized the ADA’s application to both websites and mobile apps. Just last year the U.S. Supreme Court in the Domino’s Pizza case refused to consider a web and mobile app accessibility case against the pizza chain. That refusal meant the Ninth Circuit appeals court opinion against Domino’s is good law.

The Domino’s Ninth Circuit opinion said that disabled people can bring claims under the Americans with Disabilities Act if certain websites or mobile applications are not accessible. Domino’s efforts to gut the ADA and get this opinion overruled failed.

The Ninth Circuit Opinion Summary, prepared by the court’s staff, gets to the bottom line:

the ADA applied to Domino’s website and app because the Act mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind.Court Summary of Domino’s Pizza opinion

Here are some resources on LFLegal about how the ADA already covers websites and mobile applications:

The bill only addresses a fraction of ADA’s coverage of technology

This bill is backlash legislation against a certain type of lawsuit filed against private companies. This is obvious from the bill’s narrow focus on only “consumer facing websites and mobile applications owned or operated by a private entity.”

The ADA is so much broader in its application to technology.

Narrow language like this puts at risk efforts to use the law to increase accessibility of other technology and protect civil rights of disabled people in the digital world.

For example:

    • The ADA covers websites, mobile applications, and technology of of state and local governments
    • The bill is silent about workplace software, websites and mobile applications relied on by employees to do their jobs. The ADA protects the rights of disabled applicants and employees
    • I often say technology is fast and the law is slow. This bill addresses only websites and mobile applications. What about kiosks, virtual reality, artificial intelligence, or tomorrow’s technology? A narrow focus on a particular type of technology puts ADA coverage of other technologies at risk.

When the ADA was passed there was not a single consumer facing website. Yet the law has proven strong and flexible enough to recognize that a disabled person’s civil right to participate in all aspects of society must include participation in the digital world.

To amend the ADA with a narrow definition of technology is unwise and harmful to the millions of people with disabilities who rely on its protection.

The bill uses the wrong standard for compliance

The bill defines a compliant website or mobile application as one that substantially complies with WCAG 2.0 Level A and AA, or any subsequent update, revision, or replacement to WCAG 2.0. WCAG 2.0 was replaced more than two years ago, with the publication of WCAG 2.1 yet the proposed legislation gives site owners an option to use an old standard.

But sloppiness over the correct version of WCAG is not the principle problem with the compliance standard. Far more troublesome is this language:

ALTERNATIVE MEANS OF ACCESS.—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 under 14 paragraph (1) [WCCAG] 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.October 1, 2020 proposed Online Accessibility Act, section 601 (b)(2)

In other words the bill does not actually require WCAG compliance, but allows for an “alternative means” of “equivalent access” to web and mobile content.

What could be equivalent to independent, confidential 24-hour access to digital content that accessibility provides?

As I’ve written before, I don’t think a phone line can ever substitute for an accessible website. But the ADA as it has existed for thirty years gives defendants a chance to make that argument. The ADA should not be weakened to expressly allow for an alternative to meeting the international industry standard of WCAG.

The bill sets up a costly and elaborate rule-making procedure with lots of delay

The bill depends on the US Access Board and the federal Office of Management and Budget (OMB) to adopt regulations. It gives the agencies more than two years to do so. Then, when that process is over, the DOJ has to adopt new regulations for handling web accessibility complaints, even though the Department has had rules in place for processing ADA complaints for decades.

The bill specifically requires the DOJ to build in “flexibility” for small businesses. Yet since it was passed 30 years ago, the ADA has had defenses that recognize that the size of a company may impact its ADA obligations.

While the needs of “small businesses” are identified, there is not a word about ensuring that the regulations meet the needs of people with disabilities.

Courts have consistently said that web accessibility regulations are not needed to bring websites and mobile applications within ADA coverage. The Domino’s appeals court opinion that the US Supreme Court declined to reconsider was clear:

Moreover, since it announced its position in 1996, DOJ has “repeatedly affirmed the application of [T]itle III to Web sites of public accommodations.” 75 Fed. Reg. 43460-01, 43464 (July 26, 2010). Thus, at least since 1996, Domino’s has been on notice that its online offerings must effectively communicate with its disabled customers and facilitate “full and equal enjoyment” of Domino’s goods and services.

And in any case, our precedent is clear that, “as a general matter, the lack of specific regulations cannot eliminate a statutory obligation.” Ninth Circuit Opinion in Domino’s Pizza case.

I can only imagine how long it would take for these federal agencies to issue regulations — regulations that are not needed because the ADA already covers websites and mobile applications and the DOJ already handles ADA complaints.

The Department of Justice tried and failed for years to issue digital accessibility regulations.  The Access Board took more than a decade to “refresh” Section 508 regulations.  Limiting legislation requiring new regulations is not needed.

The DOJ can already assess civil penalties — in much higher amounts than included in this bill

The proposed Online Accessibility Act allows the Department of Justice to go to court and seek civil penalties against those who violate the Act. The penalties are $20,000.00 for a first violation and $50,000.00 for subsequent violations.

The current ADA already gives the DOJ authority to seek civil penalties in a much higher amount than the proposed law offers.  Penalties for a first violation is $96,384.00, while the DOJ can seek up to $192,768 for a subsequent violation.

These amounts have gone up periodically since the ADA was adopted.  The most recent Civil Monetary Payments Inflation Adjustment was issued for many federal laws, including the ADA, on June 19, 2020.  (Search Americans with Disabilities Act on the page linked in this paragraph to find the ADA amounts.)

A new law offering lower penalties for the denial of civil rights in the digital space is unfair and unnecessary.

The bill limits the rights of disabled people to enforce the ADA through private lawsuits

The Online Accessibility Act does not allow people with disabilities to file a lawsuit about an inaccessible website or mobile app unless they first exhaust time-consuming administrative procedures. This, perhaps more than any of the problems described here, is what is most troubling about the proposed legislation.

I believe in and prefer collaboration. In my experience, long lasting accessibility comes when organizations respect and work with disabled people instead of fighting in court. I developed and practice Structured Negotiation with colleagues and clients as a way to avoid the conflict and expense of lawsuits. I’ve spent 25 years  representing blind people and their organizations in Structured Negotiation with some of the largest private and public organizations in the country without filing a single lawsuit.

Yet I know that without potential lawsuits, Structured Negotiation would be far more difficult if not impossible in the United States legal landscape. I know that civil rights lawsuits have been crucial to the enforcement of the Americans with Disabilities Act for thirty years. In tech specifically, ADA civil rights lawsuits brought by private individuals and their lawyers against Target, Netflix, and others have made the digital world more accessible to countless people with disabilities.

And yes, I also believe that some lawyers abuse the ADA in the digital space.

In my view, the Online Accessibility Act is a form of backlash against a lawsuit strategy that is less about improving digital accessibility and more about lawyers making money. I have spoken and written about my concerns with the ethics of these lawsuits. Yet regardless of how I or anyone else feel about a certain legal strategy, we cannot let those concerns take away the right of disabled people to go to court to enforce the ADA.

On social media I’ve already seen a comment about this bill saying that requiring exhaustion of administrative procedures “would certainly cut down on serial plaintiffs.” I agree that what some call opportunistic lawsuits are a problem in the digital accessibility legal space. But preventing disabled people from filing a lawsuit to protect their civil rights in the digital age is not an equitable way to address this problem.

The proposed law takes away rights to enforce other civil rights laws

The proposed bill to amend the ADA includes troubling language about other civil rights laws. Section 603 states:

“A civil action under this title is the sole and exclusive remedy for any person aggrieved by the failure of any consumer facing website or mobile application to meet the requirements of section 601. proposed Online Accessibility Act

This appears to be a brazen effort to strip away the ability of disabled people to to enforce state and local laws protecting access websites and mobile applications. California and many other states, for example, have their own laws recognizing digital inclusion. These laws are frequently used to protect disability rights in the digital world.

I’m not an expert in administrative law, and cannot say whether it would even be legal to do this. It certainly shouldn’t be.

Who Introduced the Legislation and Why

The bill was introduced by Republican Congressman Ted Budd from North Carolina and Democratic Congressman Lou Correa from California. Representative Budd tried and failed two years ago to convince the U.S. Department of Justice to do what this bill tries to do – limit the ADA as it applies to web and mobile apps. The effort backfired and in the Fall of 2018 the DOJ affirmed that the ADA as it was written thirty years ago applies to websites.

I know that it would be easier for accessibility champions and organizations to have a set of regulations to point to that say “your website must meet WCAG 2.1 AA.” But for the reasons laid out here, this bill is not the answer.

The ADA’s broad language of inclusion covers technology as the Department of Justice has acknowledged for decades. WCAG 2.1 AA is the current internationally accepted standard for making sure disabled people are not left out of digital world and it has been recognized by courts across the country. There is no longer any legitimate claim that organizations “don’t know what to do” or that the “requirements are unclear.”

The Covid crisis has shown the world how vital access to digital content is. It is long past time that people with disabilities are able to independently use websites and mobile applications. This bill is a step backwards. I hope it is quickly defeated.