Online Accessibility Act 2021 - Take Two
Members of the House Reintroduce the Online Accessibility Act
Congress has tried multiple times to update the ADA to address the digital accessibility. On February 8, 2021 US Representatives Lou Correa (D-CA), Richard Hudson (R-NC) and Ted Budd (R-NC) re-introduced the Online Accessibility Act (HR 1100). The bill would add Title VI to the ADA to directly address digital accessibility by prohibiting discrimination of people with disabilities by private owners or operators of public-facing websites and mobile apps.
Establishment of the WCAG as The Standard
The Web Content Accessibility Guidelines was created by the W3C, an independent world-wide web standards organization. The WCAG (2.0 A, AA) has been adopted in part or whole by many countries, and serves as the de facto standard in the US, as affirmed by the vast majority of court cases and the DOJ. Of note, the bill allows websites that are not in substantial compliance to offer an “alternative means of access” equivalent to the content of the website or mobile app. How this would be provided opens questions.
The bill would remove the DOJ from rulemaking related to the ADA, and put the US Access Board in charge of issuing standards and amend these standards to keep up with changing technologies.
New Role For DOJ
The bill puts initial enforcement onto the DOJ. They would be required to investigate allegations and to file civil lawsuits against those deemed in violation of Title VI. They will also be expected to periodically review public websites and apps on their own. New here, damages to the plaintiff and civil penalties starting at $20K for an initial violation, and $50K for additional violations. Of note, a court will be required to consider any good faith effort to comply in determining these amounts.
The bill introduces an initial Notice and Cure period that would require any aggrieved individual to notify the website or mobile app operator, and allow the operator to address the issues within 90 days. If the operator fails to address issues within that period, the individual must then file a complaint with the DOJ. The individual can only pursue their own civil suit if the DOJ notifies the individual that they will not pursue the matter after they've concluded their investigation. Months later? Years later? If the DOJ fails to respond at all, is there any further recourse?
This bill has some real problems, and will be opposed by disability rights activists. First, the allowance of “alternative means of access” is vague and troubling. Would a 24 hour 800 number suffice?
Secondly, the cure period has already been opposed. And the 90 day period is not adequate anyhow.
Thirdly, the ability and capacity of the DOJ to handle such a workload in a timely manner is doubtful and as a result will make the process very lengthy.
And finally since courts will be required to consider “good faith efforts”, it really puts into great question how onerous those penalties will be. Although plaintiffs will potentially have the ability to claim damages for themselves for the first time, since individuals will need to go through so many hoops, it will effectively block most from even trying.
Without question, the advocates for people with disabilies will strongly oppose this bill.