Proposed Online Accessibility Act - Three Key Takeaways

A new bi-partisan bill was proposed on Thursday, Oct 1 to regulate website and app accessibility lawsuits

Representatives Ted Budd, R-N.C., and Lou Correa, D-Calif introduced the bill. You can read the proposed legislation in full here.

The CliffsNotes on the Proposed Online Accessibility Act

• It would be applicable to consumer-facing websites and apps.
• Act would create a separate title IV of the ADA 
• The US Access Board, a federal agency that promotes equality, would oversee final standards. 
• Before a company can be sued, the plaintiff needs to give written notice to the company requesting that they correct the problems. 
• Violators to be fined $20,000 for the first offense and $50,000 for every subsequent offense. 

The bill was quickly supported by the National Retail Federation who issued a statement. 

This proposed legislation is not the first time the US Congress has attempted to create clear rules around the accessibility of website and app content. The Department of Justice (DOJ) reaffirmed that websites of businesses open to the public must be accessible under the ADA in a letter to Congress in September 2018, but it never established technical requirements. 

Like others before it, this bill may not pass. Only one day after its proposal, the House adjourned for October recess. 

The bill is also unlikely to get support from the DOJ as it would mean that the DOJ would get tens of thousands of complaints that it would need to track.  

Top 3 Takeaways on the New Proposed Online Accessibility Bill

1. This initial draft cites WCAG 2.0 AA. However, its more likely that the US Access Board would support a WCAG 2.1 AA standard. WCAG 2.1 AA has been established for two years; it includes support criteria for mobile apps and sites. It is also the standard used in the California Consumer Privacy Act (CCPA). It would also be advisable for the Access board to follow the precedent set by Air Carrier Access Act and include testing with the disability community as part of the verification process. 

2. This new legislation would update the current ADA with a new Title IV. That would please Disability advocates who have pushed for web and apps to be included in the ADA for more than 20 years. In addition, the US Access board already worked to add technical standards to the ADA before the DOJ withdrew ADA compliance for website access regulations in January 2017. Finally, the DOJ and the courts have said too much about websites and apps being subject to the ADA to make not updating the ADA a strange direction to take. 

3. The real likelihood of a new law in the future may increase more lawsuits in the short term and do little to reduce lawsuits in the long term. Plaintiff law firms are now filling lawsuits at twice the pre-Covid lockdown rate - over 100 last week. A new law would likely take 12-24 months to pass, even with broad support. That gives lots of time for plaintiff firms to get busy. If a new law like this one is enacted, most plaintiff could use the already established California Unruh act to bring private lawsuits. 

the representatives who introduced Online Accessibility Act

Rep. Budd said in a statement:

“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.”

Rep. Correa said: 

“A predictable regulatory environment is critical for small businesses. Unfortunately, when it comes to website compliance, these regulations aren’t clearly defined. This bill ensures that small businesses know what they need to do to be ADA compliant.  It’s a simple, bipartisan, and common-sense solution that will put this problem behind us.”

It's time for action.

Businesses frequently come to us or legal counsel to seek clarity on which accessibility standards are enough to make their websites and apps accessible and ADA compliant. Some companies may use this proposed bill to delay investment in accessibility. But really, that's just an excuse. 

In the US, there is a clear history of ADA applying to websites and apps and a roadmap to accessibility provided by the WCAG. The DOJ settlement agreements and the courts have documented the WCAG as the recognized standard for web and app accessibility, for more than 20 years.

It is possible for every website and app to follow the WCAG prevailing standards with the right efforts and support  The current standard is WCAG 2.1, which came after lots of good work by the W3C working groups.

Rather than waiting on new legislation, now is the time for companies to move forward with accessibility, remediate to WCAG 2.1 compliance and make the digital world inclusive.