If you have a team in the World Series tonight, good luck. My teams, the Atlanta Braves, Chicago Cubs, or Chicago White Sox are not in it. So, I will just be watching for fun.
Today’s blog entry is the introduction of the Websites and Software Applications Accessibility Act by Democratic Senator Duckworth of Illinois and Democratic representative John Sarbanes of Maryland. The Senate version of the bill was referred to the committee on health education labor and pensions. The house version of the bill was referred to the education and labor committee as well as to the judiciary committee. Whether the bill continues to go forward in the shape that it takes may or may not depend upon the results of the elections in a couple of weeks. Keep in mind that disability is not partisan, so it is not easy to tell how the bill will proceed after the election depending upon the result. A whole bunch of disability organizations have gotten behind the bill. Regardless of how the bill moves forward, it is a useful undertaking to explore the bill to see where disability rights oriented legislators and disability rights oriented organizations are going with respect to clearing up the wild West of Internet accessibility (I quite often make presentations on the wild West of Internet accessibility litigation). I will discuss the bill by sections. So, the blog entry is not divided into the usual categories. In each section, I cover the highlights of that section. Where I offer my own thoughts, I will pre-face it with the word “comment.”
§2: Findings and Purposes
- The digital economy accounts for nearly 10% of the United States gross domestic product.
- 85% of United States adults visit the Internet at least once per day.
- A purpose of the Act is to require websites and applications to be readily accessible and usable by individuals with disabilities regardless of whether the entity has a physical location or is digital only.
- Comment: a physical location is no longer required. Therefore, this legislation adopts the approach of the cases saying that title III websites must be accessible to persons with disabilities if what is going on is of the type in 42 U.S.C. §12181(7).
- In title III litigation over Internet sites, meaningful accessibility rules. However, this legislation uses the term “readily accessible,” and also references WCAG concepts, as seen below. Both “readily accessible,” and the WCAG concepts are quite arguably different standards than the “meaningful accessibility,” standard that currently prevails.
- The term accessible or accessibility borrows heavily from the underpinnings of the WCAG standards. In particular, accessibility means the website is perceivable, operable, understandable, and robust and has to allow persons with disabilities to access the same information, to engage in the same interactions, and to communicate and to be understood as effectively with the same privacy, independence, and ease-of-use as persons without disabilities.
- Comment: WCAG is not mentioned but the principles of WCAG underpin the definition of accessible and accessibility.
- The term “application,” applies to software as a service. In particular it applies to any software designed to run on a device (including smart phones, tablets, self-service kiosks, wearable technology items, laptops, desktop computers, or another device), that is designed to perform or helps the user perform a specific tasks.
- Comment: the Architectural Accessibility Board has issued a notice of proposed rulemaking regarding kiosks. It is not clear how this legislation affects that rulemaking. Of course, there is no guarantee that this legislation will ever turn itself into law or what the final legislation may look like.
- “Covered entity,” means an employment entity, public entity, public accommodation, or testing entity.
- Comment: §3(5) notably does not use the term, “place of public accommodation.” It is quite clear that §3(5) is talking about entities covered by title I, title II, title III, and §309 of the ADA.
- The Act applies to title III entities and to testing entities regardless of whether either owns, operates, or utilizes a physical location for covered use.
- Disability tracks the definition of disability in 42 U.S.C. §12102.
- Employer tracks the definition in 42 U.S.C. §12111, which means an employer have to have 15 or more employees to be subject to the Act.
- The Act applies to unions.
§4: Access to Websites and Applications
- Entities subject to the Act have to ensure that communications with applicants, employees, participants, customers, and other members of the public with disabilities are as effective communications and interactions with individuals without disabilities.
- Comment: §4(1) is a clear reference to the DOJ title II and title III effective communication rules. It remains to be seen whether the title III approach, interactive process with the entity making the final call, or the title II approach, primary consideration rule, is what the regulators push.
- Undue burden and fundamental alteration are defenses. Presumably, they are affirmative defenses.
- EEOC gets the responsibility for rulemaking with respect to the employment provisions and DOJ gets go down 50 the responsibility for rulemaking with respect to nonfederal governmental entities and public accommodations (title III entities). In both cases a notice of proposed rulemaking has to occur within 12 months after the enactment of the Act and a final rule must be put in place 24 months after enactment of the Act.
§6: Periodic Review
- Each federal agency receiving complaints or engaging in enforcement must submit a report on the complaints and activities to DOJ and to the EEOC.
- DOJ and the EEOC have to update their accessibility regulations every three years following the date of issuance of the initial accessibility regulations.
§7: Enforcement and Administrative Action, and Private Right of Action
- With respect to title II, title III, and §309 entities, DOJ enforces those regulations.
- DOJ has the ability to receive complaints and to investigate on its own violations of the Act.
- An individual seeking to sue under the Act regardless of the entity involved need not exhaust administrative remedies.
- With respect to title I entities, EEOC enforces those regulations.
- EEOC has the ability to receive complaints and to investigate on its own violations of the Act.
- As with title I of the ADA, if a nonfederal governmental entity is involved, DOJ is the enforcement mechanism on the administrative side.
- A plaintiff can get injunctive relief and damages, regardless of context, including compensatory and punitive damages, in a private cause of action.
- Comment: interesting question as to whether compensatory damages would include emotional distress, especially after Cummings. It would appear from this legislation that the intent is that emotional distress damages are available.
- The DOJ and the EEOC have to establish a standing advisory committee on accessible websites and applications.
- Comment: it is unclear, from a literal review of the Act, whether there are two separate advisory committees or just one. Logically, you would think there would be two separate committees but that is far from clear. See §8(5) below.
- The composition of the standing committee is listed out in the Act. Interestingly enough, there is no mention of Deaf only deaf, which are two very different things.
- The purpose of the committee is to provide responsive, advice, and guidance to DOJ and the EEOC for carrying out the Act.
- The committee has to conduct public meetings twice per year at a minimum; submit reports and recommendation to DOJ and to the EEOC and make those reports and recommendations publicly available every two years at a minimum, and assist the DOJ in the EEOC in identifying and understanding the impact and implications of innovations with regard to accessible websites and applications.
§9: Technical Assistance
- This section of the Act essentially creates a Job Accommodation Network dealing with website accessibility.
§10: Study and Report on Emerging Technologies
- The National Council on Disability has to conduct a study and prepare report on the effect that emerging technologies have on the ability of individuals with disabilities to participate in employment, education, government, healthcare, commerce, culture, and other aspects of society. That report must also report on the effectiveness of the Act in achieving its purpose.
§11: Rules of Construction
- Nothing in the Act can be construed to affect the scope of obligations imposed by any other provisions of law, including §504 of the Rehabilitation Act, title II of the ADA, title III of the ADA, §1557 of the Patient Protection and Affordable Care Act. §508 of the Rehabilitation Act, and §255 of the Communications Act of 1934.
- Comment: I am not sure why §501 of the Rehabilitation Act is missing from §11(1).
- Nothing in the Act can be construed to limit the remedies, rights, and procedures of any federal law or the law of any state or political subdivision of any state or jurisdiction providing greater or equal protection for the rights of individuals with disabilities than what is provided in this Act.
- Any regulations promulgated under this Act cannot have a standard less protective of individuals with disabilities contained in title I, title II, title III, and the regulations issued by the Federal Communications Commission for video programming and communication services provided via websites and applications.
- The regulations cannot contain any requirement that a person with a disability must notify a covered entity of an allegation of a violation of the Act prior to commencing a civil action.
§12: Authorization of Appropriations
- $5 million gets authorized for fiscal years 2024-2028 to carry out the rulemaking review, enforcement, and the recommendations of the advisory committee sections of the Act.
- $15 million gets authorized for fiscal years 2024-2028 to create this Act’s version of the “Job Accommodation Network.”
- $150,000 gets authorized for fiscal years 2024-2028 to carry out the study by the National Commission on Disability.
§13: Effective Date
- The Act goes into effect six months after it is signed by the president. It is 12 months for §4: Access to Websites and Applications.
- Comment: elections are coming up shortly. Regardless of your political persuasion and beliefs, go out and vote. Very unclear as to how this bill will proceed regardless of who takes the majority in each house of Congress because disability is not a partisan issue. Also, many constituencies are not at all happy with the wild West of Internet litigation that currently exists. All of this makes it very interesting to follow the course of this bill in the future.