In 2020 the COVID-19 pandemic ushered in a rapid shift regarding how, when, and where we consume digital information technology. Legislation plays a key role in how technology solutions are adopted and implemented. Here is an update on recent legislative actions related to digital accessibility.
Quick facts:
- In July 2021 approximately 176 website accessibility lawsuits were filed
- Approximately 52% of litigated websites used an accessibility overlay
- Capitol Hill continues to struggle in its efforts to address digital accessibility issues
- Competing rulings lead to split circuit uncertainty
In July of this year, 176 accessibility lawsuits were filed. Consumer Discretionary, Consumer Services, and Food, Beverage & Tobacco were targeted most. Of all lawsuits filed for digital accessibility issues, 47% were filed in New York, with California coming in second at 42%. Notably, websites that use third-party accessibility overlay tools continue to face enforcement activity, while legislative efforts stall again.
Bill to establish digital accessibility guidelines fails
The proposed legislation (HR 8478) seeking the establishment of digital accessibility guidelines under the ADA, failed to pass in Congress during its 116th session, which ended on January 3rd, 2021. The bill faced opposition from disability rights supporters who believed that the legislation would have only curtailed the rights of plaintiffs to sue.
If passed, this legislation would have amended the existing ADA provisions to protect business organizations against lawsuits related to online accessibility. The proposed bill would have set the standard for digital accessibility as the Web Content Accessibility Guidelines (WCAG) 2.0 rather than WCAG 2.1.
The proposed legislation would have also limited the scope of ADA to consumer-related websites and apps run by private organizations. Moreover, it would have restricted the plaintiffs’ ability to file a civil lawsuit against a company until alternative remedies were exhausted.
Online Accessibility Act re-introduced with new provisions
On the 18th of February, 2021, the proposed legislation (HR 1100) reintroduced in the 117th Congress the Online Accessibility Act with stronger protections for the persons with disabilities accessing digital technology. The bill sought to establish the principles set forth by some courts, which say that a website or a mobile app that lacks accessibility could be in violation of the ADA.
To achieve this objective, the bill proposed amending the Americans with Disabilities Act by adding at the end the following new title, "Title VI - Consumer Facing Websites and Mobile Applications Owned or Operated by a Private Entity", in which the act mandates that a consumer-facing website or mobile application shall be considered compliant if it is "in substantial compliance with the Web Content Accessibility Guidelines."
The proposed legislation would require the US Access Board to seek public comment and publish standards and amend them as needed with the evolving technologies.
However, the proposed legislation would require a plaintiff to give notice for alleged non-compliance and provide an opportunity to correct (“cure”) compliance issues before further enforcement activity. This provision of “notice and cure” was opposed earlier by disability rights advocates in HR 8478, and it is likely to face the same opposition in the current bill as well.
Certain websites do not qualify as “Public Accommodations” under the ADA
While legislation is sorely needed to clarify duties and responsibilities related to web accessibility, a split circuit between the ninth circuit and the eleventh circuit court of appeals has done nothing to clarify the issue.
On April 7, 2021, the 11th Circuit Court of Appeals passed a ruling which said that websites of Winn-Dixie Stores are not “public accommodations” as defined under the ADA Title III. This decision of the court reversed the previous opinion of the ninth circuit, which required Winn-Dixie to make its digital platform accessible to people with visual impairments. This case now is likely to go to the US Supreme Court to determine a resolution.
While Title III of the ADA defines brick and mortar locations as “public accommodations”, it provides no clear guidance on digital formats, apps, or websites. Until clearer guidance is provided by the DOJ or clarified via legislation, organizational leadership should continue to monitor ongoing enforcement activity to anticipate trends and identify best practices.
Comments