On October 2, while the news covered President Trump’s admission to Walter Reed for treatment of Covid-19, Congressmen Lou Correa (D-CA) and Ted Budd (R-NC) introduced the bipartisan Online Accessibility Act, which they claim will “increase website accessibility and reduce predatory lawsuits filed against businesses.”¹ Will it work? That’s a reasonable question.
Let’s start by looking at the problems with the law of website accessibility as it exists today. From a business standpoint the situation is somewhere between bad and ridiculously bad. The main problems:
- There is no recognized legal standard for website accessibility. A website that satisfies one court may not satisfy another, and a business that settles a lawsuit today may be sued tomorrow over the same website.
- There is no recognized technical standard for website accessibility. It is often claimed that WCAG 2.0 AA is sufficient, but there is no statutory or regulatory authority for its application to business websites, so technical compliance will not guarantee freedom from lawsuits.
- Even if WCAG 2.x AA were the technical standard it would not a suitable legal standard because conformance over an extended period of time is impossible and the standard itself does not recognize any level of conformance other than perfect conformance.(11) Modern websites are constantly in flux, and since those who develop them are human and therefore likely to make mistakes, a website that is in conformance one day may not be the next. A standard that requires constant perfection can never be met and therefore guarantees future litigation no matter how diligent any business might be.
- Although websites are by their nature available in all fifty states and U.S. territories there is no single law governing accessibility. A website operated from Topeka, Kansas is subject not only to the ADA and the laws of Kansas, but also to the laws of New York, New York City, California, and a host of other varying state and municipal standards. A website that passes muster in Florida may be unacceptable in Ohio or Puerto Rico.
In short, a business with a website cannot do anything to protect itself from predatory lawsuits, because even making a website that permits a disabled user to do everything the website was designed for may still violate WCAG 2.x AA or whatever standard a local state or federal judge decides is applicable. Businesses faced with such lawsuits have little choice but to pay off the plaintiff’s attorneys and hope they won’t be sued again.
For those with disabilities the present system of ADA enforcement is in many ways equally unsatisfactory. The plaintiffs’ firms who bring private lawsuits are paid when the case is settled, but remediation is typically targeted for 18 to 24 months in the future. The plaintiffs have little incentive to see whether the work is really done because it is always easier to sue a new plaintiff than to fight an old one, especially if the fight is over just a few remaining problems. Website accessibility lawsuits are also brought based on the agenda of a few law firms rather than a rational assessment of what will most help disabled users. Whatever one may think of last year’s string of lawsuits against art galleries in New York, or the obsessive lawsuits against credit unions that began a year earlier it is unlikely that art gallery and credit union websites are the most important websites for those with disabilities who want to fully participate in the internet. Last, and certainly not least, private lawsuits are a hugely inefficient way to enforce public policy because millions of dollars go to private lawyers that could be spent on accessibility.
Now let’s look at the Act to see whether it solves any of these problems.
The Act begins by creating a new Title VI for the ADA devoted entirely to consumer facing websites and mobile applications. This is a huge step forward because Title III was, at its heart, about physical accessibility and the provision of services associated with physical businesses. Title III has its own flaws and has certainly spawned an entire serial filing industry, but when applied to physical accessibility it at least provided some certainty that compliance would be a reasonable defense to litigation. Applied to the web both the language of the statute and the case law that interprets just did not make sense.
The Act next creates a technical standard for website accessibility, adopting WCAG 2.0 A and AA as the minimum. This solves the problem of the lack of a technical standard for website accessibility. More important, the Act requires only “substantial” compliance with WCAG 2.0 A, AA, recognizing that perfect conformance is not possible, and that some flaws have to be acceptable. This is important because when interpreting the physical accessibility standards in Title III of the ADA some courts have rejected a substantial compliance standard, insisting instead on perfect compliance.(5)
There is, however, a difficulty. “Substantial compliance” can be interpreted two ways. It can mean mostly compliant in the sense that there are relatively few non-conforming elements, or it can mean there are no non-conforming elements that interfere with meaningful access to the benefits or services of the website. “Meaningful access” is the standard applied under Section 504 of the Rehabilitation Act for access by the disabled to federal government programs² and Title II of the ADA to state and municipal programs.³ There are complaints that it is not a well defined term(4) but Title II regulations provide some insight into how it might apply to websites, for they require that:
“A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.”
28 C.F.R. § 35.150(a). (emphasis added). If substantial compliance is interpreted in this functional manner plaintiffs will be required to prove not just some number of technical failures, but that those failures mattered to their ability to use the website for its purpose.
While it requires substantial compliance with WCAG 2.0 A, AA, the Act also allows an alternative means of access that is “equivalent access for individuals with disabilities to the content available on such website or mobile application.”(6) Here there are two problems. The first is legal. “Content” is a term that comes from WCAG and refers to “the information in a web page or web application, including: natural information such as text, images, and sounds and code or markup that defines structure, presentation, etc.”(7) This definition, like WCAG 2.x itself, makes no effort to distinguish between the parts of a website important to its function and those that may be interesting but non-essential. This reflects a philosophical position on access by the disabled that presumes everything about a website, whether trivial or critical, should be accessible. “Should” is the key word, because a statutory or regulatory command goes beyond aspirations of equality and imposes absolute requirements. The physical access standards for Titles II and III of the ADA embody a number of compromises that recognize perfect accessibility is sometimes not possible at a reasonable expense. The Online Accessibility Act needs to recognize that while meaningful access should always be required, access to elements of a website unrelated to its primary function need not be accessible, or at least that a cost/benefit balancing is appropriate.
The second problem is practical. Even under a “meaningful access” standard it is probably impossible to duplicate the functionality of a modern website or mobile app by some other means. The exception for alternative means of access will probably be meaningful only for a limited number of websites that have an already limited functionality.
Recognizing these issues the Act gives the Access Board(8) regulatory authority to further define “substantial compliance,” “alternative means of access” and “consumer facing website or mobile application.” However, knowing there will be an answer is not the same as knowing it will be the right answer, and the Act would be better if it specifically adopted the “meaningful access” standard or the existing regulatory standard in 28 C.F.R. § 35.150(a).
The next part of the Act, requiring exhaustion of administrative remedies, is perhaps the most important for businesses of all kinds. The notice and complaint procedures will give a business accused of violating the new Title VI a reasonable opportunity to fix a non-compliant website as well as a far less expensive alternative to litigation in terms of defending the website’s compliance. This requirement does not preclude later litigation; in fact, as in employment discrimination cases the complaining party will always have the alternative to sue whether or not there is a favorable outcome to the administrative process. In addition, the requirement of a process to investigate complaints is not funded and the Department of Justice has a very poor history of funding anything related to the ADA other than the lawsuits it initiates.(9) The most important effect of the exhaustion requirement will not be that it resolves disputes without litigation, but that it discourages serial filers by requiring that they jump through additional hoops and wait for months before they can get down to the business of making money through litigation.
The final section of the Act grants a private remedy to disabled plaintiffs but requires that the plaintiff plead “with particularity each element of the plaintiff’s claim, including the specific barriers to access. . . ” This is an important provision because most serial plaintiffs rely on generic or boilerplate pleadings that at best mention the nature of a violation. However, for this requirement to be meaningful the phrase “specific barriers to access” needs to be defined in a way that will help the defendant understand exactly what the problem is by identifying precisely where on a web page (or within the code defining a web page) the supposed barrier to access can be found. Leaving this up to the courts is going to create confusion as different district judges, who probably do not understand even the basics of web page design and coding, reach different conclusions about what “specific barriers to access” means.
The last three important things about the Act are what it omits. The first is a grace period. After a standard has been adopted businesses should be permitted time to implement that standard without facing lawsuits. The original physical access regulations were implemented with a grace period and website accessibility should be no exception.
The second is funding. Unless Congress requires DOJ to spend money on the required administrative remedies and investigations it is unlikely DOJ will do much if anything to implement the law.
Even more important, the Act should explicitly preempt state regulation of website accessibility. As a rule Congress has permitted the states to enact their own civil rights legislation that might be stricter than the equivalent federal laws. This is appropriate for most civil rights legislation because the violations are inherently local. In the ADA context Title II and III physical accessibility is necessary a local matter except in those rare cases that justify a national class action. The internet is not inherently local; in fact, it is the opposite, being inherently national or international. The Courts have recognized that for businesses required to operate in many states there should be just one national standard. Thus, the Air Carrier Access Act has been held to pre-empt conflicting state laws with respect to disabled access because of the federal interest in uniformity for air travel.(10) The Online Accessibility Act will be meaningless unless Congress explicitly preempts state regulation of online accessibility. Otherwise businesses will continue to be subject to conflicting requirements and plaintiffs will continue what they are already doing by filing lawsuits in those states whose local disabilities laws are most favorable to their enterprise. We need a single national standard for website accessibility and a single national mechanism for enforcement that eliminates inconsistency between courts because that nature of the internet means that every local regulation has a national effect.
The Online Accessibility Act is, of course, a long way from becoming law. There is time to fix the problems described above, but also time for the plaintiffs’ bar and its captive disability rights organizations to try to gut the law or eliminate it entirely. In the meantime, if the Act is not perfect it is certainly a good start and undoubtedly the best thought out ADA reform legislation proposed in the last decade. Business and the those with disabilities should hope that in 2021 circumstances will be more propitious and the Act will make its way through Congress to the desk of the next president.
¹ Thanks to Ken Nakuta of Converge Accessibility (convergeaccessibility.com) for calling this bill to my attention. The announcement it self can be found at Rep. Correa’s website, ADA Bill.
² See, Alexander v. Choate, 469 U.S. 287, 302, 105 S.Ct. 712, 720 (1985)
³ See, Todd v. Carstarphen, 236 F. Supp. 3d 1311, 1328 (N.D. Ga. 2017)
(4) See, Liberty Resources, Inc. v. Philadelphia Hous. Auth., 528 F. Supp. 2d 553, 566 (E.D. Pa. 2007) [“Since the Court’s ruling in Alexander, few courts have explored how to define meaningful access or determine when a program provides or denies disabled people meaningful access to its benefit.”]
(5) See, Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001)
(6) It isn’t perfectly clear whether providing an alternative means of access is always acceptable or that it is just an option when substantial compliance isn’t possible or is in progress.
(7) See, Web Content Accessibility Guidelines (WCAG) Overview
(8) Officially the Architectural and Transportation Barriers Compliance Board, this is the federal entity responsible for most accessibility regulations.
(9) DOJ already has a complaint procedure with a mediation provision, but the funding is inadequate and so it does not provide an effective remedy for disabled consumers. Even before the current pandemic the EEOC, which has a much more robust procedure for dealing with complaints, only rarely managed to meet its own deadlines for completion of an investigation. As a practical matter the required administrative remedy will probably just give businesses more time to comply unless Congress specifically funds the program and requires DOJ to implement it in a meaningful way.
(10) See, Lagomarsino v. Delta Airlines, Inc., CV193131DMGGJSX, 2020 WL 1955314, at *3 (C.D. Cal. Feb. 7, 2020) [“The ACAA comprehensively addresses not only discrimination in the form of access to services and information, but also with respect to disabled passengers in boarding, deplaning, and connecting to subsequent flights.”]
(11) According to W3C, the consortium that develops and published the WCAG:
Conformance to a standard means that you meet or satisfy the ‘requirements’ of the standard. In WCAG 2.0 the ‘requirements’ are the Success Criteria. To conform to WCAG 2.0, you need to satisfy the Success Criteria, that is, there is no content which violates the Success Criteria.
(emphasis added) See, “Understanding Conformance“