By Minh Vu and Julia Sarnoff

Seyfarth Synopsis:  Congressmen Budd and Correa try to address website and mobile app accessibility in a new bill called the “Online Accessibility Act.”  

On October 2, 2020, Representatives Lou Correa (D-CA) and Ted Budd (R-NC) introduced a bill called the “Online Accessibility Act” (H.R. 8478) (the “OAA”) which would amend the ADA to add a new Title VI prohibiting discrimination by “any private owner or operator of a consumer facing website or mobile application” against individuals with disabilities. The OAA would also establish web accessibility compliance standards for consumer facing websites and mobile apps and create a mandatory administrative process that persons injured by allegedly inaccessible websites and mobile apps must use before they can file a lawsuit.  

Here is a summary of the bill and our initial thoughts on the matter.

Key Provisions of the OAA

Compliance Standard.  Under the bill, covered entities — defined as “any private owner or operator of a consumer facing website or mobile application” — can comply with the ADA with respect to their consumer facing websites and mobile applications by one of the two following ways: 

(1) Substantial Conformance” with WCAG 2.0, Level A and AA.  A website or mobile application would be considered compliant with the ADA if it is in “substantial compliance” with the Web Content Accessibility Guidelines (WCAG) 2.0, Level A and AA, or any subsequent update, revision, or replacement published by the World Wide Web Consortium (the international organization that develops the WCAG technical guidelines).  

(2) “Alternative Means of Access” Acceptable.  A private entity that owns or operates a consumer facing website or mobile app that is not in “substantial compliance” with WCAG 2.0 A and AA could comply with the ADA by providing “alternative means of access to individuals with disabilities that is equivalent to access the content available on such website or mobile application.”  

The bill tasks the Architectural and Transportation Barriers Compliance Board (the “Access Board”) with the job of defining the terms “substantial compliance” with WCAG 2.0, Level A and AA, “alternative means of access,” and “consumer facing website or mobile application.”  The Access Board would also develop regulations for the implementation of the OAA’s compliance standard.  The bill also directs the Access Board to “include flexibility for small business concerns.”

Exhaustion of Administrative Remedies Required Prior to Filing a Civil Lawsuit.  As drafted, the bill would require aggrieved persons with a disability to exhaust their administrative remedies before bringing a civil action.  

To do so, the individual must first provide notice to the owner or operator of the consumer facing website or mobile app of the fact that its website or mobile application does not comply with the WCAG 2.0 AA (or later version) (“accessibility standard”).  The owner or operator would then have 90 days to bring its website or mobile app into compliance with the accessibility standard.

If the owner or operator fails to bring its website or mobile app into compliance with the accessibility requirements described above within the 90 day notice period, the individual may then file an administrative complaint with the Department of Justice (“DOJ”) within 90 days after the notice period expires.  The DOJ would have 180 days to complete its investigation, at which point DOJ could initiate a civil enforcement action against the business in “any appropriate United States district court.”  

The individual may only bring a lawsuit after the end of the 180-day period if the DOJ chooses not to do so.  In a lawsuit brought by DOJ, the court may order compliance with law and, monetary damages (but not punitive damages), and assess a civil penalty not exceeding $20,000 for a first violation, or $50,000 for any subsequent violation.  In considering civil penalties, the court would be required to consider “any good faith effort or attempt to comply” with the bill’s requirements.

Only if DOJ does not complete its investigation within 180 days, or if DOJ finds that there is a violation but decides not to initiate its own enforcement action, may an individual file a private civil lawsuit against the owner or operator for non-compliance with the ADA.  The bill explicitly states that this civil action is “the sole and exclusive remedy for any person aggrieved by the failure of any consumer facing website or mobile application to meet the requirements” of the Act.

Our Initial Observations.

  • The definition of a “consumer facing website” as “any website that is purposefully made available to the public for commercial purposes” is rather vague.  Would it apply to a website or mobile app that sells goods or services only to other businesses, for example?  
  • The bill would apply to a private entity that is an “owner or operator of a consumer facing website.”   This language would seem to cover companies that host or maintain websites on their platforms for private businesses.  Thus, the OAA, if enacted, could cover more entities than just public accommodations that are currently the targets of website and mobile app accessibility lawsuits.
  • Although the DOJ can obtain injunctive relief, damages, and a civil penalty in an enforcement action, the bill does not say what relief would be available to a private litigant.  In addition, the maximum civil penalty that can be obtained by the DOJ under this new Title VI would be significantly less than the maximum for other types of discrimination under Title III of the ADA (i.e. $96,384.00 for a first violation and $192,768 for a subsequent violation).
  • The administrative process contemplated by the OAA would put a new and significant burden on the DOJ, which would have to investigate all complaints.   
  • The bill’s statement that its remedies are the “sole and exclusive remedy” for aggrieved persons raises questions as to whether individuals would be prohibited from filing lawsuits to enforce state and local laws concerning the accessibility of websites and mobile applications.
  • The bill leaves open the question of how long a “grace period” covered entities will have to come into compliance with its requirements following the issuance of regulations by the Access Board.
  • The bill contains no defenses for covered entities, such as technical infeasibility, undue burden, and/or fundamental alteration.

Response to Bill by Disability Rights Advocates.  

Disability rights advocates do not seem enthusiastic about the bill.    

Some advocates say that the more recent WCAG 2.1 should be the standard for compliance, not WCAG 2.0.  They also oppose an allowance for alternative means of access to online content.  Advocates have also expressed concern that the requirement to exhaust administrative remedies would limit the right of disabled people to enforce the ADA through private lawsuits.  Furthermore, the Act could prohibit individuals from enforcing state and local disability access rights laws.  Additionally, advocates believe that limiting the Act to websites and mobile apps puts at risk their efforts to use the ADA to increase accessibility of other technologies such as kiosks and employee software.

What’s Ahead?  

Past attempts to amend the ADA to address the concerns of private entities faced with a deluge of lawsuits (e.g. the ADA Education and Reform Act and the ADA Notification Act) have not gained much traction because they did not receive support from disability rights advocates.  However, we think both businesses and advocates would like to see clear legal requirements on this issue rather than the confusing and constantly evolving patchwork of court decisions that exists today.  Thus, the bill is certainly a step in the right direction.

disabled buttonBy Minh N. Vu and Kristina M. Launey

On February 18, 2015, the U.S. Architectural and Transportation Barriers Compliance Board (“Access Board”) issued a proposed rule (“NPRM”) which would, among other things, adopt the WCAG 2.0 Level AA Guidelines (“WCAG 2.0 Level AA”) as the standard for federal government websites.  Section 508 of the Rehabilitation Act requires federal government websites and off-line documents and software to be accessible, but the Section 508 standard for accessible websites has been, since it issued in 2000, a list of 16 requirements that are less rigorous than the WCAG 2.0 Level AA Guidelines.  The issuance of this NPRM underscores that — even while the Justice Department (“DOJ”) has been demanding that public accommodations make their websites conform to WCAG 2.0 Level AA — neither it nor any other federal agency is presently required to meet this standard.  As we have reported, the DOJ has entered into a number of settlements and a consent decree with public accommodations which reference WCAG 2.0 Level AA as the accessibility standard.  DOJ has done so even though it still has not issued a proposed rule that adopts a legal standard for accessible public accommodations websites.  DOJ started this rulemaking process more than four years ago and has stated that it will issue a rule in June of this year. Whether this projected deadline will be pushed back again remains to be seen.

The government has faced scrutiny and even been sued for its own inaccessible websites.  As we previously reported, last year an advocacy group sued the United States General Services Administration, alleging GSA’s own website, SAM.gov, is inaccessible and does not comply with Section 504, leaving certain blind and visually impaired government contractors unable to register or timely renew their government contracts.  The NPRM even notes that some federal agencies have had trouble complying with the less demanding existing Section 508 standards.

In announcing the NPRM, the Access Board noted that adoption of WCAG 2.0 Level AA for federal agency websites would  promote consistency with the Department of Transportation’s recent final rule which adopted the same standard for air carrier and ticket agent websites, and accelerates the spread of web accessibility.

The Access Board will provide a 90 day public comment period and will hold a public hearing on March 5 at the CSUN conference in San Diego, and on March 11, at the Access Board in Washington, D.C. After the public comment period closes, the Access Board will consider the comments and issue a Final Rule.  We will be watching with great interest to see whether federal agencies, including DOJ, will support the adoption WCAG 2.0 Level AA for their own websites and how much time they will give themselves to remediate and conform their websites to this new standard.

By Kristina M. Launey

On Monday, the National Association of the Deaf (NAD) announced a settlement agreement between it and VUDU, Inc., a wholly owned streaming entertainment subsidiary of Walmart, in which VUDU has agreed to caption 100% of movies and television programs streamed online through VUDU’s Video on Demand Service.  NAD is a non-profit civil rights advocacy group of, by, and for deaf and hard of hearing individuals.  In the agreement, VUDU agreed to, by January 16, 2015, ensure every title in its online catalog is closed-captioned or subtitled, and to caption all newly-acquired content as soon as that content is made available to the public.

The agreement does not address whether Vudu or the providers of the videos and other content Vudu streams on its service is responsible for providing the captioning; Vudu simply commits to provide the content with captioning or subtitles.  The only exception to this general commitment is in cases where a video programming owner provides Vudu with non-English-language-based content containing English language subtitles.  In that case, the agreement allows Vudu to use that English-subtitled version in lieu of Closed Captioning as long as Vudu has used diligent efforts to obtain Closed Captions or subtitles that describe the audio content of programming, such as speaker identification, sound effects and music description.  The agreement prohibits subtitles from being used for programming required to be captioned under the Communications and Video Accessibility Act or when Closed Captions or Subtitles for the Deaf and Hard of Hearing are available. 

The agreement also requires Vudu to provide customer service representatives with documentation and training regarding handling questions about captioning issues.

The agreement remains in effect until May 31, 2018.

Captioning of videos and other online content has been a hot topic recently in the ADA Title III space in various forms.  In 2011, NAD sued Netflix over its streaming service and received mixed results due to a conflict in the courts as to whether a web-only video streaming business is a place of public accommodation covered by Title III of the ADA, as we reported here and here.  Ultimately, NAD and Netflix entered into a consent decree that, similar to the Vudu agreement, required closed captions in 100% of Netflix’s streaming content.  In a different context, the Department of Justice is working on rules that would govern the obligation of movie theaters to show movies with closed captioning and audio description, but has only issued proposed regulations.  In yet another slightly different context, a Court rejected a deaf plaintiff’s claims that Redbox violated Title III by not making more closed-captioned videos available at its DVD rental kiosks and that Redbox Digital failed to closed-caption all of its online videos that were available for streaming.  The Court reasoned that a public accommodation is not required to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities in the form of captioned videos at its kiosks.  The Court also found, following Ninth Circuit precedent, that Redbox Digital did not have to caption its library of web-based videos for deaf or hard-of-hearing consumers because a website is not a place of public accommodation under Title III.

This is a new frontier, and clearly a high priority for deaf advocates.

Edited by Minh N. Vu

By Minh Vu

Only four months into 2014, the Department of Justice (DOJ) has already made clear that it is pursuing an aggressive enforcement agenda when it comes to the obligation of public accommodations to ensure effective communication with individuals with disabilities.  On March 3, the DOJ entered into a consent decree with H&R Block that requires the company’s website, tax preparation tool, and mobile applications to be accessible.  On April 10, the DOJ filed a Statement of Interest in a pending case to support the plaintiff’s position that retailers must provide a means for blind customers to independently input their personal identification numbers (PIN) at point of sale devices (POS) when making purchases using a debit card.  The clear message is that DOJ will get involved in private litigation when it does not like the positions or arguments made by defendants.   As these and other businesses know, a DOJ intervention can be a game changer in a pending case.  The DOJ brings its expertise and agency authority to the table which some judges may find persuasive even if they are not required to defer to the agency’s interpretation of its own regulations.

Website and Mobile Application Accessibility.  The H&R Block lawsuit was originally filed by the National Federation of the Blind of Massachusetts and two of its members . The plaintiffs alleged that H&R Block’s website is not accessible to the blind.  In December 2013, the DOJ filed a motion to intervene in the case with a broader complaint alleging that H&R Block had violated the ADA by having a website that was inaccessible to people with various disabilities, not just the blind..  The lawsuit was a bold move considering that DOJ had not issued (and still has not issued) proposed regulations defining the standard for what constitutes an “accessible” website.

In March, DOJ and H&R Block entered into a consent decree in which the latter agreed to make its website, mobile applications, and tax preparation tool comply with the Website Content Accessibility Guidelines (WCAG) 2.0 AA.  The WCAG 2.0 is a privately developed set of guidelines for website accessibility which can also be adapted for mobile applications.  H&R Block also agreed to pay damages to the named plaintiffs and the maximum civil penalty.  The decree contains stringent monitoring and testing obligations.

Point of Sale Device Accessibility.  This month, the DOJ filed a Statement of Interest in support of a private plaintiff who sued a retailer over an inaccessible POS device.  The plaintiff could not make a purchase using his debit card because he could not input his PIN into the POS device’s smooth touchscreen keypad.  The DOJ intervened to counter two arguments the retailer made:  (1) POS devices are not required to be accessible because the ADA Standards for Accessible Design do not specify standards for them; and (2) the plaintiff was not denied access because he could make his purchase using the alternative methods of cash, credit cards, and debit card payment that is processed as a credit card charge and requires no PIN.

In response to the first argument, the DOJ emphatically stated that the lack of specific technical standards for POS devices does not mean that they are not required to be accessible.  In the absence of such specific standards, DOJ argued, the more general obligation for public accommodations to provide auxiliary aids and services to ensure effective communication would still apply and it would be up to the public accommodation to come up with a way to meet the obligation.  The DOJ noted that while providing POS devices with tactile keypads would be one approach, there could be other technologies that could provide accessibility as well.

In response to the second argument that the blind plaintiff had other payment options besides a debit from his account which would require the input of a PIN,  the DOJ stated that the ADA prohibits differential treatment — not just complete exclusion.  The fact that blind individuals do not have the full range of payment options available to sighted individuals, in DOJ’s view, constitutes such differential treatment.

(After the DOJ’s filing, the district court dismissed the case without prejudice because the plaintiff had not alleged enough facts to establish that he had standing to bring the lawsuit, but since court granted the plaintiff permission to amend his complaint, the lawsuit is not likely to go away).

*     *     *

What do these recent DOJ actions mean for businesses that have websites, POS devices, or other self-service equipment? Continue Reading Justice Department Targets Websites, Mobile Apps, and POS Devices

By Kristina M. Launey

Once again, CSUN’s International Technology and Persons with Disabilities Conference brought together thought leaders, programmers, corporate and governmental accessibility representatives, vendors of digital accessibility solutions, advocates, and others in the field of digital accessibility to share developments and ideas. The large, varied crowd, as well as the substantive sessions, remove any possible doubt that the area of web and mobile accessibility is rightfully garnering a lot of attention.

Although the Department of Justice is still working on proposed regulations that would presumably adopt a legal standard defining what is an accessible website or mobile app, its recent enforcement actions make clear that the absence of regulations poses no impediment to legal action against businesses for not having accessible websites or mobile apps. Private plaintiffs have been also been very active in filing lawsuits or asserting such claims against many companies.  In this climate, many companies that have either been the targets of these actions, or just paying close attention to these developments, have decided that it is better to commit to accessibility now than to engage in a protracted and expensive legal battle.  Moreover, as many companies at the conference have recognized, building accessibility into any refreshes, redesigns, or new rollouts of websites or mobile apps makes sense over increased expense of remediating those same sites later, especially if remediation is done in response to legal action.

The conference’s legal update session drove these points home.  Accessibility civil rights attorneys Lainey Feingold and Linda Dardarian emphasized their position that Title III of ADA does cover websites, and gave a year-in-review report of digital accessibility legal developments in the following industries: Continue Reading Accessible Websites and Mobile Apps: Hot Topics at CSUN’s International Technology and Persons with Disabilities Conference