On October 2, 2020 a bipartisan bill was introduced by Congressmen Lou Correa and Ted Budd. The bill, officially The Online Accessibility Act (OAA), is a proposed amendment (Title VI) to the Americans with Disabilities Act of 1990 (ADA) and was created with the intentions of increasing accessibility and reducing “predatory lawsuits filed against businesses.”
In this review, I’ll provide commentary on some of the more important parts of the bill (here is the full text of the bill). All selections from the bill will be in quotes.
Websites and Apps
“include consumer facing websites and mobile applications owned or operated by a private entity”
The bill specifically addresses websites and mobile apps made available to the public for commercial purposes but doesn’t mention anything else digital (e.g., kiosks).
“Substantial Compliance” and WCAG 2.0 AA
“A consumer facing website or mobile application shall be considered compliant under the requirements of this section if… in substantial compliance with the Web Content Accessibility Guidelines (referred to in this title as WCAG) 2.0 Level A and Level AA standard… or any subsequent update, revision, or replacement to the WCAG 2.0 Level A and Level AA standard…”
Two things. First, substantial compliance is a pivotal term because it brings ambiguity back into the picture: What constitutes substantial compliance?
This type of hedge is necessary because conformance with WCAG can be subjective and perfect conformance is extremely difficult to achieve, if for no other reason than minor accessibility issues (which don’t materially affect accessibility) do occur.
I’m very interested to see how substantial conformance is defined.
Second, WCAG 2.0 AA was chosen as the standard. As the current version is 2.1 AA (published June 2018) and includes multiple success criteria that improve mobile accessibility, they should have chosen 2.1 AA. My speculation is that they wanted to sync with the 2017 Section 508 refresh so they went with 2.0 AA.
Note: The drafters should have wrote conformance instead of compliance.
Alternative Means of Access
(2) ALTERNATIVE MEANS OF ACCESS.—A private entity that owns or operates a consumer facing website or mobile application that is not in substantial compliance with the standard set forth under paragraph (1) shall provide an alternative means of access for individuals with disabilities that is equivalent to access the content available on such website or mobile application.
This language is misapplied as part of a dual option for accessibility (conformance or alternative conforming version). This should be a very remote exception to conformance left to the technical details. The vast majority of web pages and apps (think greater than 99.9%) will not qualify for an exception to create an alternative conforming page as set out by WCAG.
The alternative means of access exception is reserved for scenarios where a web page or screen is best left untouched to preserve it as is.
Illustration: A page that has a scanned image of the U.S. Constitution could still keep the formal document up while providing a conspicuous link to a page with the full text of the document.
The very last thing an amendment to the ADA should provide for is a means to create a separate but equal experience. This notion runs against the essence of the ADA.
The Architectural and Transportation Barriers Compliance Board (referred to in this title as the ‘Access Board’), shall issue and publish standards setting forth—‘‘(i) for purposes of this title, a definition of ‘substantial compliance’, ‘alternative means of access’, and ‘consumer facing website or mobile application’; and ‘‘(ii) regulations necessary to implement the standard set forth in subsection 6(b).”
The details and expertise are rightfully left to the Access Board. The U.S. Access Board is a federal agency that promotes equality for people with disabilities through leadership in accessible design and the development of accessibility guidelines and standards.
The most important decision for The Access Board will be what constitutes substantial conformance.
I will not quote to the bill for this section but here is the timing:
- The Access Board has 180 days after the enactment of the Online Accessibility Act to promulgate a notice of proposed rulemaking.
- Upon notice, there will be a 90 day window for public comment.
- After the Access Board takes the comments under advisement, the Office of Management and Budget will conduct a regulatory assessment for up to 90 days.
- Within one year after this assessment, the Access Board shall issue final regulations.
The Access Board process alone may take up to 725 days (five days short of two years) which means the Online Accessibility Act – at best case – would take three years to finalize.
Small Business Flexibility
‘‘(3) FLEXIBILITY FOR SMALL BUSINESS CONCERNS.—Regulations established under this section shall include flexibility for small business concerns to comply with the standard under subsection (b).
This is a brief but significant section in the OAA as it will affect millions of websites. Two crucial questions:
- What constitutes a small business?
- What does flexibility look for small businesses look like?
The answer to the first is 3(a) of the Small Business Act (15 U.S.C. 3632(a)).
I’m extremely curious as to how they provide for flexibility because flexibility with conformance decreases accessibility.
‘‘(a) EXHAUSTION OF ADMINISTRATIVE REMEDIES.—No individual may bring an action before a civil court to enforce the provisions of this title until all administrative remedies under this section have been exhausted.”
Here I’ll continue with the bill but without exact language:
- Prior to filing a complaint with the Attorney General, an individual must notify the website owner that it is not in compliance
- If the website is not brought into compliance within 90 days, a complaint may be filed with the Department of Justice
- A copy of the complaint shall be provided to the website owner
- The deadline for an individual to file a complaint is the 90 day window after the original 90 days allowed for a website to be brought in compliance
- After receiving a complaint, the Attorney General has 180 days to determine whether a violation exists
- A final determination is made if
- the Attorney General determines the website is not in compliance
- the Attorney General does not make a determination
- A final determination is made if
This section is horrid. This bureaucratic remedies process completely disincentivizes organizations from embracing digital accessibility.
Beyond the multiple barriers to filing a complaint, the remedies section neglects to take into account that the DOJ doesn’t have the capacity or resources to address each complaint.
This section must be revised.
Enforcement by the Attorney General
“The Attorney General shall investigate alleged violations of this title, and shall undertake periodic reviews of compliance of consumer facing websites and mobile applications under this title.”
‘‘(B) POTENTIAL VIOLATION.—If the Attorney General has reasonable cause to believe that—
‘‘(i) any person or group of persons is engaged in a pattern or practice of discrimination under this title; or ‘‘(ii) any person or group of persons has been discriminated against under this title and such discrimination raises an issue of general public importance, the Attorney General may commence a civil action in any appropriate United States district 9court.
I’m continuing with the bill but, again, without exact language:
When the Attorney General pursues an action, the court may:
- grant equitable relief
- order monetary damages to persons harmed, if requested by the Attorney General
- Assess penalties of up to $20,000 for a first violation and $50,000 for a subsequent.
The DOJ can independently pursue inaccessibility claims.
“Upon exhausting all administrative remedies under section 602, any individual aggrieved by a violation of this title may commence a civil action… unless the Attorney General has instituted an enforcement action under this title.”
Only after someone gets through the bureaucratic obstacle course under the remedies section above can they file a lawsuit. This is egregious and detrimental to digital accessibility.
‘‘(b) TOLLING.—With respect to the running of the statutory periods of limitation for such action, the running of such statutory periods shall be deemed suspended during the period beginning on the date of the enactment of this Act and ending 180 days after the date the Access Board has issued final regulations under section 601.
My interpretation of this section is that if, and as soon as the Online Accessibility is enacted, there will be a freeze on any potential private action until 180 days after the Access Board publishes regulations.
Assuming I’m correct, this means the act goes forward without extremely important details and while that happens no lawsuits can be brought.
The Online Accessibility Act requires websites and mobile apps substantially conform to WCAG 2.0 AA. However, the act, as it stands, would practically create the opposite effect because of the bureaucratic complaint and enforcement process.
Abusive litigation can be curtailed while continuing momentum towards an accessible web. This bill at least acknowledges a problem but it comes nowhere close to being a solution.