Bill to Establish Web Accessibility Guidelines Fails to Pass

A bill calling for official Americans with Disabilities Act (ADA) Web accessibility guidelines, the Online Accessibility Act (H.R. 8478), failed to pass during the 116th Congress, which ended Jan. 3. Disability rights advocates opposed the proposed legislation, saying standards already exist and the bill would have limited plaintiffs' rights.

For years, the Department of Justice (DOJ) has discussed issuing regulations on website accessibility. But in 2017, the department officially withdrew those proposed regulations.

Following the announcement, Rep. Ted Budd, R-N.C., tried to convince the DOJ to establish website accessibility guidelines for public accommodations under the ADA. The DOJ declined, stating that the ADA as written already provides appropriate guidance on the topic.

In October 2020, Budd proposed the Online Accessibility Act, which was co-sponsored by Rep. Lou Correa, D-Calif., in response. The bill is "largely a result of both the DOJ's refusal to provide its own regulations, coupled with the recent surge of ADA website lawsuits," said Conner Eversole, an attorney with Hall Estill in Denver.

Bill's Provisions

The bill would have amended the ADA to introduce mandatory notice periods to shield businesses from lawsuits. The Society for Human Resource Management did not take a position on the bill.

The proposed legislation would have set the standard for online accessibility as the Web Content Accessibility Guidelines (WCAG) 2.0 Level A and AA rather than WCAG 2.1, the more recent and technical standard providing detailed specifications for making websites accessible. Although the WCAG 2.0 was replaced with the publication of WCAG 2.1, with WCAG 2.2 to be finalized this year, the proposed legislation would have given site owners an option to use the old standard. The bill also would have allowed for a yet-undefined "alternative means of access."

The bill would also have limited ADA coverage to only consumer-facing websites and mobile applications owned or operated by a private entity. "Currently, the ADA spans a wide range of technologies," Eversole said.

In addition, the bill would have limited one's ability to sue a business in civil court until all administrative remedies had been exhausted. Under the bill, someone could not sue until he or she:

• Notified the owner or operator of the business's noncompliance.
• Filed a complaint with the DOJ if the owner does not respond or bring its technology into compliance within 90 days.
• Waited up to 180 days for the DOJ to determine if there was a violation.

Curtis Decker, executive director of the National Disability Rights Network in Washington, D.C., wrote in opposition to the bill. "ADA notification proposals, such as this bill, just allow businesses to put off coming into compliance with the law."

Lack of Awareness

"The problem many businesses face is a lack of general awareness of what they must do to comply with the ADA with respect to websites," Eversole said. "Though the ADA does not provide official guidelines, the WCAG 2.1 AA is the standard many courts have looked to with regard to website access and the ADA."

He added that many businesses don't regularly review their websites for ADA compliance, or simply rely on a third party to run their website. They therefore "have no idea their technology may not be in compliance until they receive a lawsuit."

He said the bill's proponents supported its reduction in the number of frivolous lawsuits and remediation without requiring court intervention. "However, opponents see this bill as severely restricting the ADA's effectiveness and would ultimately impose unnecessary restrictions on those with disabilities," Eversole stated.

"Virtually everyone agrees—the disabled community and businesses subject to Title III [of the ADA]—that guidance in the way of a statute or regulations regarding website accessibility would be useful," said Kristina Launey, an attorney with Seyfarth in Sacramento, Calif. Title III applies to public accommodations—businesses open to the public. Title I applies to employers.

She noted that businesses have hired digital accessibility experts to "help them make an educated guess as to whether a court would determine the website is accessible. Legislation or regulation setting a clear standard would clear up this uncertainty for businesses, the disabled community and the courts."

But the bill has many provisions that have led to opposition from the disability community.

[Related Small Business Resource—SHRM LegalNetwork.]

Opposition to Bill

In a blog post, Lainey Feingold, a disability rights attorney in San Francisco, explained why she is opposed to the bill. Her reasons include the following:

• The ADA already covers websites and mobile applications.
• The bill only addressed a fraction of the ADA's technology coverage.
• The proposed legislation used the old standard for compliance.
• The bill set up a costly and elaborate rulemaking with lots of delay.
• The DOJ already can assess civil penalties in much higher amounts than included in the bill.
• The bill limits the rights of people with disabilities to enforce the ADA through private lawsuits.

Moreover, she noted that "the bill is silent about workplace software, websites and mobile applications relied on by employees to do their jobs. The ADA protects the rights of disabled applicants and employees."

Feingold wrote, "I know that it would be easier for accessibility champions and organizations to have a set of regulations to point to that say, 'Your website must meet WCAG 2.1 AA.' " But, she concluded, "this bill is not the answer."