In October 2020, Representatives Lou Correa (D-CA) and Ted Budd (R-NC) introduced a proposed Online Accessibility Act, intended to curb lawsuits that accuse consumer-facing websites of violating Title III of the Americans with Disabilities Act (ADA).
The Online Accessibility Act would formally remove websites and mobile applications from Title III coverage and create a new ADA Title VI dedicated specifically to consumer-facing websites and mobile applications.
The key points of the proposed legislation are discussed below. But first, a brief discussion of where we are and how we got here.
The ADA requires places of “public accommodation” to meet accessibility standards for disabled visitors. The statute enumerates several specific public accommodations (e.g., restaurants and hotels), all of which are physical locations. Although the question of whether websites conducting online business must also be accessible is not addressed in the legislative text of the ADA, the Department of Justice (DOJ) and many federal courts have concluded that websites are places of public accommodation, and as such must be accessible to all visitors.
The main problem with shoehorning websites into Title III of the ADA has been that unlike physical premises, which are heavily regulated, the DOJ has not promulgated standards for online accessibility.
The DOJ initiated rulemaking in 2010, contemplating accessibility requirements based on the World Wide Web Consortium’s (WC3) Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA), but terminated the process in 2017. Since that time, websites of all kinds have been vulnerable to litigation, and the courts have been deluged with thousands of cases. The result has been a patchwork of inconsistent decisions.
In October 2019, the U.S. Supreme Court declined to clarify the issue, leaving in place a Ninth Circuit ruling that had determined Title III applies to a restaurant chain website and mobile application because each constitutes a “service of a place of public accommodation.”
More than 2,800 federal “surf by” lawsuits are now filed each year. More than 90 percent settle quickly. In the absence of achievable safe harbor standards, the question of whether a website is accessible often presents “factual” issues that preclude pre-answer dismissal. Litigation gets significantly more costly once discovery begins, and the cost of litigation nearly always exceeds the cost of settlement in these cases. When faced with the choice between the relatively low cost of settling early and the uncertain outcome of protracted litigation, most businesses choose to pay for peace even if their website is significantly accessible.
The status quo is untenable for businesses, and now Congress may be paying attention.
THE PROPOSED ACT
The proposed Online Accessibility Act is rooted in the premise that a predictable regulatory environment is critical for businesses. The drafters recognize that, similar to physical premises, websites should be accessible to the disabled, and their owners should have available defenses to predatory litigation. Title III provides physical businesses with comfort that compliance with regulatory standards is a valid defense to such claims. The new ADA Title VI aims to provide the same clarity for businesses with consumer-facing websites.
The Online Accessibility Act would officially adopt the WCAG 2.0 AA criteria, which would establish the first-ever statutory codification of an accessibility standard for business websites. Importantly, the drafters recognize that perfect conformity is not possible; and the bill provides that a website or mobile application should be considered accessible if it is in substantial compliance with WCAG 2.0 AA or any subsequent guidelines from the WC3.
Baking in the concept of substantial, as opposed to perfect, compliance is critical. Websites are fluid. Every new page, photo or link that is added triggers new potential screen reader accessibility issues that may not be immediately apparent. The statutory term “substantial compliance” is no doubt in the eye of the beholder and the likely subject of future litigation for clarification. To that end, the bill would grant the Architectural and Transportation Barriers Compliance Board — an existing independent U.S. government agency devoted to accessibility for people with disabilities — with the authority to promulgate rules defining, among other key terms, “substantial compliance” and “alternative means of access.”
One of the most consequential elements of the Online Accessibility Act would be its requirement that potential plaintiffs exhaust administrative remedies before filing suit, giving businesses the opportunity to remedy any alleged accessibility barriers.
Businesses would have 90 days’ notice to bring their website or app into compliance. The notifying individual can then file a complaint with the DOJ, which will investigate and issue a determination. If the DOJ finds discrimination, it may file a lawsuit for injunctive relief and damages, including civil penalties. Assuming that the DOJ does not bring a civil action, the individual can file a lawsuit.
If enacted, the Online Accessibility Act will be a meaningful step towards providing a reliable framework for businesses to maintain accessible customer-facing websites, curb the serial litigation that has exploded in recent years and create real remedies to resolve violations.
The Online Accessibility Act is not yet law. For the foreseeable future, there is no safe harbor, and all businesses with an Internet presence remain vulnerable to accessibility lawsuits. A coordinated strategy is the best approach to manage risk. Successful strategies involve internal decision makers, solid legal advice and qualified website design professionals. Businesses should continue auditing their websites and mobile apps to ensure accessibility. From a practical standpoint, businesses should strive to be as compliant as possible with WCAG 2.0 —and, if practicable, the recently issued and updated version 2.1.
Despite best efforts, businesses may find themselves defendants in an accessibility lawsuit. If that happens, capitulation is not the only option. It is critical to remember that valid defenses exist and are a key part of any company’s approach.
Anthony A. Mingione, partner and co-chair of Blank Rome LLP’s General Litigation Practice Group, devotes his practice to providing business solutions to legal problems in the workplace and litigating business disputes.
Martin S. Krezalek, of counsel at Blank Rome LLP, concentrates his practice on business litigation and dispute resolution. He regularly defends businesses facing website accessibility lawsuits alleging violations of the Americans with Disabilities Act.