For those with teams continuing in the baseball playoffs, good luck this week. Both of my Chicago teams are out. However, my Braves are still in it. Today’s blog entry will discuss the legislation just filed in Congress this week by Representative Budd, a Republican from North Carolina, and by Representative Correa, a Democrat from California, entitled the Online Accessibility Act, here169119119119. Richard Hunt, a colleague of mine and frequent co-presenter, has an excellent blog entry on it where he goes into quite a bit of detail on it, here170120120120. He and I don’t always come out the same place. In this instance, we are pretty close, though there are some subtle differences worth discussing. So, I thought it would be a good idea to blog on this as well. As usual, the blog entry is divided into categories and they are: the Online Accessibility Act; my thoughts; and what Richard says/concluding thoughts. Of course, the reader is free to read any or all of the categories.

 

I

Online Accessibility Act

 

1. Creates a separate title VI of the ADA.
2. Applies to consumer facing websites and mobile applications owned or operated by a private entity.
3. Prohibits discrimination by reason of a disability by any private owner or operator of a consumer facing website or mobile application with respect to excluding the person with the disability from participation or denying them the full and equal benefits of the services of a consumer facing website or mobile application. It also prohibits discrimination by any private owner or operator of the consumer facing website or mobile application.
4. Compliance mean substantial compliance with the Web Content Accessibility Guidelines 2.0 and any subsequent revisions at their level A and AA levels.
5. If a private entity owning or operating a consumer facing website or mobile application is not in substantial compliance, they have to provide an alternative means of access for individuals with disabilities that is equivalent to access the content available on that website or mobile application.
6. The Architectural and Transportation Barriers Compliance Board is given the responsibility for issuing and publishing standards defining what is substantial compliance, alternative means of access, and consumer facing website or mobile applications. They also have the responsibility for issuing regulations concerning what is substantial compliance.
7. After 180 days from enactment of the act, the Access Board must promulgate a notice of proposed rulemaking. They also have to periodically review and where appropriate amend the standards to reflect technological advances or changes in electronic and information technology. The final regulations must include flexibility for small business concerns.
8. Requires exhaustion of administrative remedies with the Department of Justice before a claim by an individual can be filed.
9. The Department of Justice has 365 days from when the comment period ends on the Access Board regulations to develop procedures for receiving and investigating complaints.
10. Prior to filing a complaint with DOJ, an individual must first notify the private owner operator of a consumer facing website or mobile application that the website or mobile application is not in compliance with the standard for compliance.
11. Once the private owner or operator of a consumer facing website or mobile application receives the complaint, they have 90 days to bring that website or application into compliance. If they don’t, the individual can then file a complaint with DOJ.
12. If the individual does file a complaint with DOJ, a copy of that complaint must be provided to the owner or operator of a consumer facing website or mobile application.
13. An individual has 90 days from the end of the 90 day notification period to the owner or operator of the website or mobile application to file a claim with DOJ.
14. Once a complaint is filed with DOJ, DOJ has 180 days to determine whether a violation exists.
15. A final determination by DOJ is either DOJ determining a lack of noncompliance or the 180 day period expires without DOJ having made a final determination.
16. DOJ can certify that a state law or local ordinance establishing accessibility requirements meets or exceeds the minimum requirements of the Online Accessibility Act. If a State or local government has such certification, that is rebuttable evidence that the state or local ordinance meets or exceeds the minimum requirements of the Online Accessibility Act.
17. DOJ has authority to bring its own civil actions if either a pattern or practice exist or if a person or group or person has been discriminated against and that discrimination raises an issue of general public importance.
18. If DOJ brings the action, equitable relief, monetary damages to the persons harmed by the website or mobile application, and civil penalties are all in order. With respect to civil penalties, civil penalties are not to exceed $20,000 for the first violation and not to exceed $50,000 for any subsequent violation.
19. Punitive damages are out.
20. A determination in a single action by judgment or settlement that a consumer facing website or mobile application has engaged in more than one discriminatory act gets counted as a single violation for purposes of civil penalties.
21. In considering the civil penalties, a court has to give consideration to any good faith efforts or attempts by the consumer facing website or mobile application to comply with the Online Accessibility Act.
22. A private individual cannot bring a civil action against the website or mobile application if the Attorney General has instituted an enforcement action already.
23. Any complaint alleging violations of the Online Accessibility Act must plead with particularity each element of the claim, including the specific barriers to access of the consumer facing website or mobile application.
24. Consumer facing website means any website purposely made accessible to the public for commercial purposes.
25. Mobile application means a consumer facing software application that can be executed on a mobile platform or a web-based software application tailored to a mobile platform but is executed on a server.
26. Small business means anything described in 15 U.S.C. 632(a).

 

II

My Thoughts

 

1. They have to fix the punctuation in §601(a) with respect to causation. Right now, “by reason of disability” is contained within commas. So, that leads one to wonder if causation is truly “by reason of a disability,” or if that is just one idea for causation. I am sure they meant causation to be “by reason of a disability,” and so they need to take the first comma out.
2. 601’s title says that it pertains to requirement for consumer facing websites and mobile application owned or operated by a private entity. However, §601(a) says that it applies to discrimination, “by any private owner or operator of a consumer facing website or mobile application.” If Congress wants to match up this section with its heading they should take out the phrase “private owner or operator,” and replace it with “private owner or private operator.”
3. Level AA and level A of WCAG are very different levels of compliance. Perhaps, the regulations will make clear which level is substantial compliance. As a matter of preventive law, you are better off with level AA. The reason level A may have been put in there is to allow for level A compliance for certain small businesses, which was the Obama administration approach in its proposed regulations.
4. There is an assumption being made here that compliance with WCAG level AA or level A always equals meaningful access. That isn’t necessarily the case.
5. Essentially what the Act does is set up an EEOC system for online accessibility complaints. That is, you have to file a complaint first and get a final resolution before you are able to proceed to court.
6. I don’t see anything in this bill detailing the specificity of the notice an individual must make to the private owner operator of the consumer facing website or mobile application that is alleged to be in noncompliance.
7. Once the 90 days period after the owner operator of the website or mobile application has received the notice has expired, the individual then has 90 days from that to file a complaint with DOJ.
8. I don’t see anything in this bill requiring the DOJ to issue a right to sue letter. Instead, it seems if 180 days has expired without the DOJ making a final determination then the individual has a right to sue and a letter isn’t necessary. I wonder if regulations will address this point.
9. I don’t understand where DOJ is going to get the technical expertise to certify that a state law or local ordinance meets or exceeds the requirements of the Online Accessibility Act when it is based upon WCAG 2.0 et. ff. level AA or level A. That stuff is really complicated and far beyond the expertise of most lawyers. Also, where is DOJ going to get the resources to investigate noncompliance. I think it is more likely that DOJ would just let the 90 day period go by. If there is a new presidential administration, we will know more in a month, perhaps we will see more resources devoted to DOJ for doing this. We also may see a completely different kind of regulations from both the Access Board and the DOJ depending upon the election results.
10. The bill has a separate section for remedies for action brought by DOJ. However, I don’t see anything about the remedies for an action brought by a private individual once administrative remedies have been exhausted. That is something that has to be fixed. Presumably, the remedies might match up with title III of the ADA but this bill doesn’t say. Congress definitely needs to fix this so that the remedies for a private individual after exhaustion are specified.
11. 603(a) of the act states, “in any action filed under this title (emphasis mine), the complaint shall plead with particularity each element of the plaintiff’s claim, including the specific barriers to access a consumer facing website or mobile application.” The use of the term “title,” means this requirement applies to both DOJ and to individual bringing a private cause of action. Questions remain as to what “pleading with particularity,” and “including the specific barriers…,” mean. It would seem strange that DOJ by regulation could specify all of that. It would seem that courts are going to have to figure out what “particularity,” and “specific barriers,” mean.
12. Does the Access Board have the resources and expertise to develop these regulations?
13. Nothing in the Act answers the question of whether religious entities are exempt from this title or not. They are from title III.

III

 

What Richard Says/Concluding Thoughts

 

1. Richard lays out the following problems with the current scheme:

 

• 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.

Agreed.

• 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.

Agreed.

• 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.

Agreed

• 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.

Agreed.

2. I agree with Richard that “substantial compliance,” is problematic because of its dual meanings. As Richard points out, it can either apply to nonconforming elements or it could apply to nonconforming elements interfering with meaningful access to the benefits or services of the website. I also agree with Richard that meaningful access, the standard in title II of the ADA, should be the overriding standard for legal compliance. As Richard points out, the advantage to using a meaningful access standard is that there may be elements of the website that are inaccessible but do not prevent meaningful access for the person with the disability.
3. Richard points out that the bill lacks a grace period and that there was a grace period for physical access. He believes there should be a grace period for online accessibility. The problem is just how long would that grace period be?
4. Richard also suggests that this title of the ADA should preempt state laws. I see where he is going with that. The Act tries to get around that by saying that DOJ can certify substantial compliance. That is kind of a similar thing as to how the EEOC certifies a state agency as being equivalent with respect to investigating civil-rights employment claims. The problem I have is how will DOJ have the expertise and the resources to certify that state requirements for online accessibility meet the standards laid out in the Act. I am generally not a fan of preemption, but there is something to be said for Richard’s point on this in light of the very nature of the online medium.
5. I agree that meaningful access needs to be the overriding legal standard. It has worked well in title II and in title III non-architectural barrier matters. Also, this bill is a long way from becoming law. Right now, between the President having Covid-19 and the upcoming Barrett nomination, it is hard to see how anything will get through the Senate. It is entirely possible that in a month from now we will see a significant change in the makeup of the president and the Congress come January, but we don’t know. If there is a significant change come January, anything can happen.
6. The causation paragraph definitely needs to be changed and the remedies available to a private individual bringing a claim after DOJ exhaustion need to be specified.

Go Atlanta Braves.