By Minh Vu and Julia Sarnoff
Seyfarth Synopsis: Congressmen Budd and Correa try to address website and mobile app accessibility in a new bill called the “Online Accessibility Act.”
On October 2, 2020, Representatives Lou Correa (D-CA) and Ted Budd (R-NC) introduced a bill called the “Online Accessibility Act” (H.R. 8478) (the “OAA”) which would amend the ADA to add a new Title VI prohibiting discrimination by “any private owner or operator of a consumer facing website or mobile application” against individuals with disabilities. The OAA would also establish web accessibility compliance standards for consumer facing websites and mobile apps and create a mandatory administrative process that persons injured by allegedly inaccessible websites and mobile apps must use before they can file a lawsuit.
Here is a summary of the bill and our initial thoughts on the matter.
Key Provisions of the OAA
Compliance Standard. Under the bill, covered entities — defined as “any private owner or operator of a consumer facing website or mobile application” — can comply with the ADA with respect to their consumer facing websites and mobile applications by one of the two following ways:
(1) Substantial Conformance” with WCAG 2.0, Level A and AA. A website or mobile application would be considered compliant with the ADA if it is in “substantial compliance” with the Web Content Accessibility Guidelines (WCAG) 2.0, Level A and AA, or any subsequent update, revision, or replacement published by the World Wide Web Consortium (the international organization that develops the WCAG technical guidelines).
(2) “Alternative Means of Access” Acceptable. A private entity that owns or operates a consumer facing website or mobile app that is not in “substantial compliance” with WCAG 2.0 A and AA could comply with the ADA by providing “alternative means of access to individuals with disabilities that is equivalent to access the content available on such website or mobile application.”
The bill tasks the Architectural and Transportation Barriers Compliance Board (the “Access Board”) with the job of defining the terms “substantial compliance” with WCAG 2.0, Level A and AA, “alternative means of access,” and “consumer facing website or mobile application.” The Access Board would also develop regulations for the implementation of the OAA’s compliance standard. The bill also directs the Access Board to “include flexibility for small business concerns.”
Exhaustion of Administrative Remedies Required Prior to Filing a Civil Lawsuit. As drafted, the bill would require aggrieved persons with a disability to exhaust their administrative remedies before bringing a civil action.
To do so, the individual must first provide notice to the owner or operator of the consumer facing website or mobile app of the fact that its website or mobile application does not comply with the WCAG 2.0 AA (or later version) (“accessibility standard”). The owner or operator would then have 90 days to bring its website or mobile app into compliance with the accessibility standard.
If the owner or operator fails to bring its website or mobile app into compliance with the accessibility requirements described above within the 90 day notice period, the individual may then file an administrative complaint with the Department of Justice (“DOJ”) within 90 days after the notice period expires. The DOJ would have 180 days to complete its investigation, at which point DOJ could initiate a civil enforcement action against the business in “any appropriate United States district court.”
The individual may only bring a lawsuit after the end of the 180-day period if the DOJ chooses not to do so. In a lawsuit brought by DOJ, the court may order compliance with law and, monetary damages (but not punitive damages), and assess a civil penalty not exceeding $20,000 for a first violation, or $50,000 for any subsequent violation. In considering civil penalties, the court would be required to consider “any good faith effort or attempt to comply” with the bill’s requirements.
Only if DOJ does not complete its investigation within 180 days, or if DOJ finds that there is a violation but decides not to initiate its own enforcement action, may an individual file a private civil lawsuit against the owner or operator for non-compliance with the ADA. The bill explicitly states that this civil action 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 the Act.
Our Initial Observations.
- The definition of a “consumer facing website” as “any website that is purposefully made available to the public for commercial purposes” is rather vague. Would it apply to a website or mobile app that sells goods or services only to other businesses, for example?
- The bill would apply to a private entity that is an “owner or operator of a consumer facing website.” This language would seem to cover companies that host or maintain websites on their platforms for private businesses. Thus, the OAA, if enacted, could cover more entities than just public accommodations that are currently the targets of website and mobile app accessibility lawsuits.
- Although the DOJ can obtain injunctive relief, damages, and a civil penalty in an enforcement action, the bill does not say what relief would be available to a private litigant. In addition, the maximum civil penalty that can be obtained by the DOJ under this new Title VI would be significantly less than the maximum for other types of discrimination under Title III of the ADA (e.$96,384.00 for a first violation and $192,768 for a subsequent violation).
- The administrative process contemplated by the OAA would put a new and significant burden on the DOJ, which would have to investigate all complaints.
- The bill’s statement that its remedies are the “sole and exclusive remedy” for aggrieved persons raises questions as to whether individuals would be prohibited from filing lawsuits to enforce state and local laws concerning the accessibility of websites and mobile applications.
- The bill leaves open the question of how long a “grace period” covered entities will have to come into compliance with its requirements following the issuance of regulations by the Access Board.
- The bill contains no defenses for covered entities, such as technical infeasibility, undue burden, and/or fundamental alteration.
Response to Bill by Disability Rights Advocates.
Disability rights advocates do not seem enthusiastic about the bill.
Some advocates say that the more recent WCAG 2.1 should be the standard for compliance, not WCAG 2.0. They also oppose an allowance for alternative means of access to online content. Advocates have also expressed concern that the requirement to exhaust administrative remedies would limit the right of disabled people to enforce the ADA through private lawsuits. Furthermore, the Act could prohibit individuals from enforcing state and local disability access rights laws. Additionally, advocates believe that limiting the Act to websites and mobile apps puts at risk their efforts to use the ADA to increase accessibility of other technologies such as kiosks and employee software.
Past attempts to amend the ADA to address the concerns of private entities faced with a deluge of lawsuits (e.g. the ADA Education and Reform Act and the ADA Notification Act) have not gained much traction because they did not receive support from disability rights advocates. However, we think both businesses and advocates would like to see clear legal requirements on this issue rather than the confusing and constantly evolving patchwork of court decisions that exists today. Thus, the bill is certainly a step in the right direction.