This article has been updated since it was first published on October 9, 2022. The most recent update was added on October 23, 2022. Read the updates for this article.
On September 28, 2022 the Websites and Software Applications Accessibility Act was introduced in both the United States Senate and the United States House of Representatives. (This is called “bicameral legislation” because the same proposed bill was introduced in both parts (Senate and House ) of the US Congress.)
In the Senate the bill was introduced by Senator Tammy Duckworth, and was given the number S. 4998. In the House of Representatives the bill was introduced by Representative John Sarbanes and was given the number H.R. 9021. With the name and bill number, we can track the legislation on the official Congress.gov website.
Sponsored by Democrats Duckworth and Sarbanes, the new proposed law avoids the problems built into web accessibility legislation introduced (but never passed) in the past couple of years. (I wrote about those 2020 and 2021 bills in an article on this website titled “In 2021 The Proposed Online Accessibility Act in US Congress is [STILL] Bad for Digital Inclusion.)
There is a long road between introducing legislation and getting it passed. I’m in favor of the principles behind this bill. And I hope Congress does the right thing and passes legislation that firmly embeds accessibility requirements in our nations laws. Yet no one should wait for passage to make websites, applications, and other technology accessible.
As the bill sponsors wrote in the Frequently Asked Questions (and as I’ve said in countless talks, trainings and writings):
- Q: Does the Americans with Disabilities Act (ADA) already apply to websites and applications?
- A: Yes, the Department of Justice (DOJ) has long held that the ADA covers websites and other technologies that are critical to accessing a business or agency’s services or facilities.
Jump to these sections of this article
- Highlights of the proposed legislation
- Who supports this legislation?
- Learn more about the Websites and Software Applications Accessibility Act
Highlights of the proposed legislation
Highlights of the proposed Websites and Software Applications Accessibility Act include the following. (I took everything in this section from the legislation itself and the supporting documents put out by the sponsors, all linked in the Resource Section below)
In addition to what I’ve pulled out here, the legislation includes money for technical assistance and a clear statement that disabled people can enforce the law in court, as well as other provisions.
If you are interested in digital inclusion for disabled people and the legal framework in the United States, I recommend reading all the resources below. And remember, like everything else on LFLegal.com, nothing in this article is legal advice.
Purpose of the proposed law
Often the stated purpose of legislation is irrelevant to the meat of the proposed law. But in an era of accessibility overlays and legal fights over basic ADA coverage, I think the stated purpose of the Websites and Software Applications Accessibility Act is important. The purpose is stated in Section 2. The sponsors have summarized that section as follows, stating that the bill
Affirms that the Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities in the use of websites, software applications (applications) and other digital technologies and that, without equal access to websites and applications, many individuals with disabilities are excluded from equal participation in and equal access to all aspects of society.Section by Section summary of proposed Websites and Software Applications Accessibility Act
Lack of accessibility is discrimination
The proposed legislation prohibits discrimination related to use of websites and applications owned, operated or utilized by covered entities. And it requires entities covered by the law to ensure that websites and applications meet the regulations that the legislation requires.
This is in many ways a clarification of existing ADA requirements, except, as described in the next section, the new proposal directly includes “commercial providers who design, develop and modify websites or applications” in the definition of “covered entities.”
Coverage beyond the ADA
According to the FAQs issued by the bill sponsors:
This bill goes beyond the ADA to cover commercial providers who design, develop and modify websites or applications to certain covered entitiesWebsites and Software Applications Accessibility Act FAQs
In the section by section analysis of the bill, the sponsors state that the proposed law specifically requires “commercial providers that develop, maintain or update websites and applications to follow the accessibility regulation established by the legislation.” The law as a whole would give people with disabilities a direct cause of action against such commercial providers and others who do not meet the law’s requirements.
Commercial providers that develop, maintain or update websites and applications should not wait for this bill to pass to make accessibility an integral part of their products and services. And organizations already covered by the ADA and its regulations should include accessibility in all technology purchases. An accessible procurement program is key.
After all, the ADA already prohibits a covered entity from discriminating “directly, or through contractual, licensing, or other arrangements.” And the ADA already prohibits interfering with ADA rights.
While direct legal requirements included in the proposed legislation are important, best practice under the current law already supports holding those that “develop, maintain or update websites and other applications” responsible for delivery of accessible technology. And even without any legal requirements, a focus on accessible technology is essential for any organization committed to disability inclusion in the workplace, marketplace, and supply chain.
Earlier this year, the DOJ and the EEOC jointly issued guidance cautioning ADA covered entities from purchasing AI hiring tools that discriminate against people with disabilities. (See the section titled Employers are responsible if they buy technology that discriminates in my article about the new guidance. This is but one example of existing law addressing the role of technology developers and accessible procurement in avoiding disability discrimination.
New to the issue of accessible procurement? Check out Disability:IN’s Procure Access initiative, a business to business project bringing together buyers and sellers committed to accessible procurement (and a project that I have served as a consultant on). Other good resources include G3ICT’s Buy ICT for All and PEAT’s Buy IT Guide for purchasing accessible technology.)
Will this bill finally bring accessibility regulations for websites and other tech?
The proposed legislation requires the US Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) to issue regulations on website and application accessibility within two years of the bill’s effective date (not its introduction.) Most provisions don’t go into effect until 6 months after enactment. This means that this legislation, if passed, requires regulations to be issued 2 years and six months after the bill is signed by the President. (And that can’t happen until both the House and the Senate pass the bill and send it to the President for signature.)
The proposed legislation specifically states that those regulations would “include standards for accessible website and applications.” The Web Content Accessibility Guidelines (WCAG) however are not mentioned.
The summary of the legislation acknowledges that the DOJ recently said it will issue regulations for state and local government (title II) websites but that the agency had not yet committed to issuing regulations for private sector public accommodations.
I wrote about the August 2022 announcement about title II web regulations in an article on this site titled Deja Vu All Over Again? DOJ Announces Intent to Adopt Web Accessibility Regulations for State and Local Governments. As described in the article, the August announcement is about websites only. It does not mention the software applications included in Senator Duckworth’s proposed legislation.
If the Websites and Software Applications bill passed, will it be the magic ticket to finally get detailed accessible web and technology regulations in place in the United States for entities other than the federal government (which is covered by Section 508)?
I’d say yes, but not only is passage a big “if” but the final version of any Congressional action on digital accessibility is likely to look very different from this first iteration. We all need to watch the progress, or lack thereof, carefully.
Fortunately, the ADA already provides a strong foundation for accessibility and WCAG is the standard recognized by the Department of Justice and most courts that have considered the issue.
I can’t predict the future. But I can safely say it’s imperative for disability inclusion in the digital space that no one waits for this legislation to design, develop, maintain, buy, and sell accessible products and services.
We all know that laws and regulations lag far behind new and emerging technologies. This legislation addresses only websites and software applications. But at least it gives a nod to the existence of emerging tech in a section that:
Directs the National Council on Disability (NCD) to conduct a study and report on the effect of emerging technologies on the ability of people with disabilities to participate in all aspects of society and on the effectiveness of this legislationSection 10, Website and Software Applications Accessibility Act
A study and report are not enough, but fortunately, the NCD won’t have to start from scratch. Significant resources are currently being developed on the impact of emerging tech (virtual reality, extended reality, metaverse, etc.) on people with disabilities and strategies and standard for ensuring accessibility in this tech. You can find a list of Emerging Technology Accessibility Resources in my April 2022 article titled “Early Win for Deaf Plaintiff in VR Captioning Lawsuit.”Back to top
Who supports this legislation?
One of the most important things to know about the legislation is that it has the wholehearted support of well-respected and ethical disability rights organizations, including The American Council of the Blind (ACB), the American Foundation for the Blind (AFB), the National Disability Rights Network (NDRN), and the National Federation of the Blind (NFB).
These four organizations issued a joint press release about the proposed legislation on September 29 and offer other resources on their individual websites.
In addition to these organizations, the following disability-based organizations are on record as supporting the legislation:
Access Living, American Association of People with Disabilities, Association of Programs for Rural Independent Living, Bazelon Center for Mental Health Law, Blinded Veterans Association, CommunicationFIRST, Disability Rights Education and Defense Fund, Epilepsy Foundation of America, Hearing Loss Association of America, National Association of the Deaf, National Council on Independent Living, National Disability Institute, Paralyzed Veterans of America, Telecommunications for the Deaf and Hard of Hearing, Inc. The Arc, United Spinal Association, Vietnam Veterans of America.
I list them all here to show the breadth of support for this legislation.
Learn more about the Websites and Software Applications Accessibility Act
Proposed legislation is sometimes hard to understand. The sponsors of the accessibility bill did the public a great service by putting out supporting documents explaining the bill in (relatively) plain language.
Here are links to the proposed legislation and to other resources from the offices of Senator Duckworth and Representative Sarbanes.
- The proposed legislation, titled “Websites and Software Applications Accessibility Act“
- Senator Duckworth and Representative Sarbanes’ press release about the bill: Duckworth, Sarbanes Introduce Bicameral Legislation To Help Make Websites And Software Applications Accessible For Americans With Disabilities
- Frequently Asked Questions about the Websites and Software Application Accessibility Act
- A “one pager” with the legislation’s background and summary
- A three page summary of each section of the legislation (called a section by section)
One final thing about this proposed legislation. Its Senate champion is Democratic Senator Tammy Duckworth, a double amputee and the first woman with a disability elected to the US Congress. Is it a coincidence that she is leading the charge on digital inclusion for disabled people in the US Senate? I don’t think so.
Updates to this article
October 23, 2022 Update
Section 3 of the proposed Websites and Software Accessibility Act has many definitions that I did not pull out and copy verbatim when I wrote the article updated here. In reading over the Act I realized that two of those definitions are too important to leave out.
Here are the definitions of “accessible (or accessibility)” and “application” in the new proposed law. (Like the rest of the law the definitions are proposed only.) The definition section of the proposed law also includes an extensive section on “Software Definitions” that lists defines, among other things, software tools and platform software.
ACCESSIBLE.— The term ‘‘accessible’’ or ‘‘accessibility’’, used with respect to a website or application, means a perceivable, operable, understand20 able, and robust website or application that enables individuals with disabilities to access the same information as, to engage in the same interactions as, to communicate and to be understood as effectively as, and to enjoy the same services as are offered to, other individuals with the same privacy, same independence, and same ease of use as, individuals without disabilities.Proposed Websites and Software Accessibility Act Section 3 (1)
APPLICATION.—The term ‘‘application’’ means software that is designed to run on a device, including a smartphone, tablet, self-service kiosk, wearable technology item, or laptop or desktop computer or another device, including a device devised after the date of enactment of this Act, and that is designed to perform, or to help the user perform, a specific task.Proposed Websites and Software Accessibility Act Section 3 (4)