Seyfarth Synopsis: Congressmen Budd, Hudson, and Correa reintroduce the Online Accessibility Act which would govern the application of the ADA to websites and mobile applications.

By Kristina M. Launey

On February 18, 2021, U.S. Representatives Ted Budd (R-NC), Richard Hudson (R-NC), and Lou Correa (D-CA) re-introduced the Online Accessibility Act in Congress as H.R. 1100. The bill would codify the principle declared by some courts, such as the Ninth Circuit in Domino’s, that a website (and mobile app) that is not accessible can violate the ADA, and set a standard by which accessibility is measured for the purpose of compliance with the ADA.

To accomplish this, the bill would add a Title VI to the ADA that would prohibit discrimination against individuals with disabilities by any private owner or operator of a customer-facing website or mobile application and impose the following specific requirements:

WCAG as the Access Standard:  The bill would deem any website and mobile application that is in “substantial compliance” with the WCAG 2.0 AA (the “Standard”), or any subsequent version published by the World Wide Web Consortium (W3C) to also be compliant with the new ADA Title VI. For websites that are not in substantial compliance with the Standard, the bill would authorize an “alternative means of access” that is equivalent to access to the content available on the website or mobile application.

Creation of Regulations: The bill would direct the U.S. Access Board – not the U.S. Department of Justice (DOJ) — to issue and publish standards (and to amend them to keep up with technological advances), and to propose and issue regulations on the topic.  This is a change from the ADA Title III regime where only DOJ has the right to issue legally-binding standards.

Notice and Cure: The bill would require an individual plaintiff to notify the website or mobile app owner or operator of the alleged noncompliance and then allow the owner or operator 90 days to cure the alleged noncompliance before the individual may file a complaint with the DOJ.  Disability rights advocates have consistently opposed notice and cure provisions in prior attempts to amend the ADA and they are likely to oppose them in this bill as well.

DOJ Enforcement: The bill would require the DOJ to investigate alleged violations of the new Title VI, as well as to periodically review customer-facing websites and mobile applications for compliance, and authorize the DOJ to file a civil lawsuit upon reasonable belief that an entity has violated Title VI.  Remedies available in such an action would include equitable relief (i.e., fix the website/mobile app), monetary damages to aggrieved persons, and a civil penalty in the amount of $20,000 for the first and $50,000 for any subsequent violation.  A court would be required to consider any good faith effort to comply with Title VI in determining the amount of civil penalty to assess.

Private Right of Action After Exhausting Prerequisite Actions:  An individual with a disability would only be able to file a civil enforcement action after providing notice to the website/app’s owner and operator(s), filing a complaint with the DOJ, and receiving notice that the DOJ will not pursue the matter after an investigation.  In any such lawsuit, the plaintiff would be required to state with particularity the specific barriers to access on the website or mobile application.

In a press release announcing the legislation, Rep. Budd said: “Every year, thousands of website accessibility lawsuits are filed by plaintiffs alleging that certain websites were not ADA compliant. Our bill solves that problem by providing guidance to businesses on how to bring their websites into compliance. If our bill is passed, job-creators will be able to avoid costly lawsuits and be given a roadmap for how to help their disabled customers access online content.”

Rep. Hudson touted the Act, in sentiments echoed in part by Rep. Correa, as one that would: “improve web access for individuals with disabilities, as well as support small businesses. Especially as many small businesses struggle to stay afloat during the current pandemic, we must curtail frivolous and abusive litigation while continuing to push for web accessibility for everyone.”

Does this bill stand a chance?  Unlikely, but these Representatives have been persistent in trying.  Other short-lived attempts at ADA reform in Congress over the past years including the ADA Notification Act (H.R. 881 of 2011), the ADA Education and Reform Act (H.R. 620 of 2018), the “ADA Compliance for Customer Entry to Stores and Services Act” or “ACCESS Act” (H.R. 4099 of 2019), and 2020’s Online Accessibility Act, and even letter writing efforts between these Representatives and the DOJ, and Senators and the DOJ.  These efforts have not gained much traction because they did not receive support from disability rights advocates.  We do not see that situation changing during a Biden Administration.

Edited by Minh N. Vu