On October 1, 2020, Republican Congressman Ted Budd from North Carolina and Democratic Congressman Lou Correa from California introduced H.R. 8478 in the United States House of Representatives titled the “Online Accessibility Act.” The bill is intended to amend the Americans with Disabilities Act (ADA).
The official title of the Online Accessibility Act as introduced implies a goal of increased digital inclusiveness. It states:
Two main intents of this bipartisan proposed Act are to provide businesses with guidance to help ensure their websites are compliant with the ADA and to limit web accessibility lawsuits by requiring aggrieved persons to follow a mandatory administrative process before they can file a lawsuit. The proposed Act begins with promising text as it states as a general rule that,
This sounds great. We definitely want to ensure that every person has full and equal access to websites and mobile applications. However, isn’t that already a requirement? As noted by Assistant Attorney General Stephen E. Boyd’s letter to Senator Charles E. Grassley,
Although previous lawsuits do show that web accessibility is required, since many businesses are waiting for clear guidance, hoping to fly under the radar with inaccessible websites, we will welcome further clarification. If having over 2000 web accessibility lawsuits filed in 2019 was not enough to convince businesses to remediate their website for accessibility, this could give them the push they need to get their website up to date.
What is substantial compliance?
The Act goes on to state the standard for compliance, which is that a website or mobile application must be in “substantial compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level A and Level AA.”
First, why reference WCAG 2.0? WCAG 2.1 has been a World Wide Web Consortium (W3C) recommendation for more than two years (since June 2018) at the time this proposed Act was written. Proposing a bill that references older standards is alarming. Since WCAG is backwards compatible, it’s a good place to start. Nonetheless, why not propose a new bill with the newest standards?
WCAG standards go through strict testing by accessibility professionals from around the world. Guidelines are introduced, debated, tested, argued, and tested again before being accepted as a standard. What’s more, courts already require business websites to conform to WCAG standards. We see this in cases such as the National Federation of the Blind et al vs. H&R Block (2014) and Gil v. Winn-Dixie Stores Inc.
There is also room for skepticism with the text “substantial compliance.” Does this mean that websites and mobile apps just need to mostly comply with accessibility guidelines? Substantial compliance seems to reduce the requirements currently set for businesses to meet in order to declare that their website is accessible. It also leaves too much room for interpretation that would result in extended time battling an alleged complaint.
Additionally, the proposed Act charges the U.S. Access Board with deciding what would constitute substantial compliance. While the Access Board does have the knowledge to perform this task, the Board has already declared and published their final rule in the Federal Register, which by the way, requires conformance to WCAG. Seeing that this rule took more than a decade to complete a refresh, we would not expect to have a clear definition of substantial compliance any time soon.
Alternative means of access
Without going too much further into WCAG, we need to point out that the proposed Online Accessibility Act provides a way for consumer facing websites to ignore the globally recognized accessibility standards that WCAG provides. The second standard for compliance states:
So if you’ve decided that WCAG isn’t for you, the proposed Act says that you can simply provide another way to access all of the same content (we say simply, with a bit of sarcasm).
Can you imagine trying to maintain two websites with identical content all of the time? We assume they are referring to another website. How else could a business provide the same content 24 hours a day 7 days a week?
Let’s say the intent of “alternative means of access” is to actually require the alternative version to meet WCAG conformance. After all, the W3C includes information about using a conforming alternate version. According to WCAG’s standard of conformance, in order for this to be an option, the alternate version must:
- conform at the designated level
- provide all of the same information and functionality in the same human language
- be as up to date as the non-conforming content
- have at least one of the following to be true:
- The conforming version can be reached from the non-conforming page via an accessibility-supported mechanism.
- The non-conforming version can only be reached from the conforming version.
- The non-conforming version can only be reached from a conforming page that also provides a mechanism to reach the conforming version.
If an alternative version must meet all of the same requirements, why not just create the original version correctly in the first place? Attempting to create an alternative version would be a development and management nightmare.
We believe the ADA was purposefully written to enforce equal access, not separate access. An alternative means of access would do just the opposite of creating an all-inclusive website for our disabled community.
If created accessibly, the Internet brings vast independence to people with disabilities. Especially during a global pandemic such as COVID-19, an accessible website allows a blind person to enjoy equal access to things such as education, retail, and employment. It allows a person with a cognitive disability to understand the content that is presented and provides a way for them to complete tasks in sufficient time.
Choosing to limit the same independence that a person with a visual, hearing, or cognitively disability has fought to have for many years would seemingly do the exact opposite of what the ADA was designed to do.
It’s not going to be easy to file a web accessibility complaint
The proposed Act continues to provide a way out to businesses who choose not to provide an accessible website. In the Sec. 602 of Administrative Remedies the proposed Act states:
With so many web accessibility lawsuits filed each year, we can see the desire to discourage copycat lawsuits. However, there are many arguments on how to do this. The remedies of this proposed Act are as follows:
- Require an individual to first notify the owner of the website of their lack of inclusion.
- Give the owner of the website 90 days to fix their accessibility barriers (so much for having a law that requires accessible web content).
- If the owner of the website does not remove their accessibility barriers, the individual can then file a complaint with the Department of Justice (DOJ) as long as they file it within the 90 days after the 90 days grace period the owner was already given.
- The DOJ then has 180 days to decide if the website is accessible.
- If the DOJ does not make a decision, the individual could then finally move forward with litigation.
Let’s say that an individual files a complaint as soon as the 90 days from their original contact with the website owner has passed. They would still be looking at possibly 270 days (9 months) before litigation even begins. Do you know how many times we could rebuild your entire website in 270 days?
The proposed Act seems to remove quite a bit of accountability from businesses with consumer facing websites. Imagine if there was a law for stealing a car that included a clause stating that the person had 270 days to return the vehicle before litigation could even start. Just think of how many people would be driving a new car every year for free!
The ADA was signed into law in 1990. There has been a long enough grace period to ensure your business, corporation, school, government agency, or other entity has an accessible website.
Bring awareness to web accessibility
Although the Online Accessibility Act is viewed by most as a setback to website inclusion, it does help bring awareness. The more attention that is brought to web accessibility, the more likely we will see websites provide increased accessibility.
If your website is not already accessible or if you don’t know what’s required or how to do it, check out some of our free resources to help you get started. Of course, if you still need assistance, we offer a range of web accessibility services that can be custom-tailored to fit your needs.
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