It's mid Sunday afternoon. It's exactly the wrong time to send out a blog post. So why am I sending out this post? Because on Friday, a potential bombshell hit-- a proposed law that rocks the web accessibility world in the United States. Just yesterday, I put out a news alert about the new law, but I couldn't find a copy online.
Thank goodness our friend Jack McElaney at MicroAssist passed along the website for Northwest Orange County newsletter announcing the new Online Accessibility Act (OAA) and you can even download a copy of the OAA. If you aren’t already a subscriber to Jack’s Accessibility in the News Newsletter, ask to be put on the list— he always is the first to report on any new developments and I constantly rely on Jack's newsletter for keeping up with latest developments. Thanks Jack for that awesome find!
Today, I’m going to play law professor and chat about the OAA from three perspectives— the good, the interesting, and the ugly. But I’m just going to do this at a very high level because there’s a lot to cover. Also, this blog post is all about getting news out as soon as possible, so please forgive minor typos or strange grammar. It's not my prettiest piece of writing, but it is one of my fastest.
What is the Online Accesssibility Act (OAA)?
But first things first. What the heck is the Online Accessibility Act (OAA)? Well, it's bipartisan proposed legislation introduced by Congressmen Lou Correa (D-CA) and Ted Budd (R-NC) with a goal of amending the Americans with Disabilities Act (ADA) to provide clear guidance on the liability of website and mobile app owners— and hopefully stop the wave of thousands of lawsuits around the country. With the possible exception of a narrow portion of the plaintiff’s bar, this is a goal that just about everyone supports.
In a nutshell, the OAA requires that all private business make their websites and mobile apps conform to WCAG 2.0 A/AA— or whatever accessibility standard the U.S. Access Board deems appropriate in the future. Before a company can be sued, the plaintiff needs to go through a few steps:
- provide written notice to the company and request that they correct the problems,
- If the company fails to fix the problems within 90 days, then the plaintiff can file an administrative complaint with the Department of Justice,
- DOJ then has 180 days to investigate the complaint. At the end of that 180 day period, it must reach its final determination. Only then can the plaintiff bring a lawsuit in Federal court. Also, DOJ can also bring a lawsuit just as it can under Title III of the ADA.
- If the plaintiff wins in their lawsuit, they can receive injunctive relief and civil penalties of $20,000 for an initial violation and $50,000 for subsequent violations.
While the law is designed to reduce web accessibility litigation, I don’t think it will meet that goal. Instead, lawsuits will just be brought in California state court under California's Unruh Act. There are a bunch of other good things and bad things with the bill. So let’s dive in and get started!
One of the big challenges with the ADA is that different circuits have taken taken different approaches in applying the ADA to websites. In so-called “nexus” jurisdictions, a website must have some connection or “nexus”” to bricks-and-mortar business location. For instance, in California (part of the Ninth Circuit), you can’t sue a purely online business because there is no “nexus” to such a business. By contrast, other circuits (e.g. the First Circuit) don’t impose a nexus requirement. This difference became clear in 2012 when Netflix (a purely online business) was sued both in California and Massachusetts (in the First Circuit). The result? The case in California was dismissed while the case in Massachusetts went forward.
The OAA clarifies this coverage by making it clear that it applies to “any private owner or operator of a consumer facing website or mobile application.” While this clarifies coverage, it goes a little too far (see below).
Okay, I like this part. WCAG 2.0 A/AA isn’t perfect but it’s a well-understood standard that has been successfully used in settlements. It also provides a good level of accessibility for people with disabilities. Telling businesses exactly what they have to do will definitely improve accessibility.
OAA Will Put an End to ADA Web Accessibility Lawsuits
The OAA will definitely make it harder to bring ADA web accessibility lawsuits. This is a very good thing. Every day, my Lexis feed is stuffed with small businesses that are being sued for having an inaccessible websites. And most of these companies are completely blindsided by the lawsuits. While this is a great result, it won’t end web accessibility lawsuits— instead, they will just shift to California state court and California's Unruh Act (see below).
The Interesting (and Weird)
Exhaustion of Remedies
Over the last 30 years, there have been several attempts to make it harder for plaintiffs to bring ADA lawsuits— and I’ve always thought they were a bad idea. But with web accessibility suits, I feel quite a bit less passionate. Requiring plaintiffs to first go through a Federal agency before filing a case in Federal court (so-called "exhaustion of administrative remedies") is the easiest way to do meet this goal-- but, most of the time, I think it also creates a lot of bottlenecks and frustration for everyone involved.
Instead, I’ve always believed that the solution isn’t to put the limitations in substantive legislations, particularly with civil rights laws like the ADA. Instead, except in unusual circumstances (e.g. seeking a temporary restraining order), plaintiffs should always try to resolve disputes informally before resorting to the courts. But that obligation shouldn’t be part of the ADA. Instead, it should be part of procedural requirements, like the Federal Rules of Civil Procedure.
But, again, I'm still a bit on the fence. Other disability rights attorneys may have a different point of view, which I completely respect. Hence, I put this in the category of "Interesting"-- to me, it's neither good nor bad.
Damages and Civil Penalties
The OAA’s inclusion of $20,000 and $50,000 in civil penalties, plus the possibility of monetary damages should be interesting to both defendants and disability advocates. While the private sector might be concerned about this provision, it’s largely identical to what a court can award in a normal Title III lawsuit. In fact, if anything, the OAA weakens the penalities because normally a court could award $50,000 for the first violation and $100,000 for subsequent violations. And THAT may be of concern to disability right advocates.
Paragraph 602(d)(1)(A)(II) is a strange paragraph that states,
On the application of a State or local government, the Attorney General may, in consultation with the Access Board, and after prior notice and a public hearing at which persons, including individuals with disabilities, are provided an opportunity to testify against such certification, certify that a State law or local ordinance that establishes accessibility requirements that meets or exceeds the minimum requirements of this Act for the accessibility and usability of consumer facing websites and mobile applications under this title. At any enforcement proceeding under this section, such certification by the Attorney General shall be rebuttable evidence that such State law or local ordinance does meet or exceed the minimum requirements of this Act.
I think this was an oversight as there is an identical paragraph Title III. 42 U.S.C. § 12188(b)(1)(A)(ii). That paragraph is designed to enable state and local authorities to have their own accessibility codes “certified” by the Justice Department. The idea here is that, when local building code officials approve buildings and plans, they can help ensure that the Justice Department won’t sue the building owners who just got a clean bill of health from the building officials. But that idea of certification has no place here because there is no review of websites by local officials. Plus, for all intents and purposes, there is only one set of accessibility standards (WCAG). This is gratifying because I can’t see attorneys in the Disability Rights Section reviewing design requirements for websites. 😉
The Bad and Ugly
OAA Has No Effect on Unruh Lawsuits
Over the last year, we’ve noticed something interesting— more and more web accessibility cases are being brought in California state court under the Unruh Act. Because of the limited damages and uncertain coverage of websites under the ADA, I’ve always thought that the balance would eventually tip in favor of California being the preferred venue for web accessibility lawsuits and Unruh being included in causes of action in those lawsuits. And that’s exactly what happened. While New York and Florida remain popular hotspots for web accessibility cases, a TON more cases are being filed in California. And, if the OAA passes, we can pretty easily predict that the plaintiff’s bar will just bring all their lawsuits there.
This could create an ironic twist for Representative Correa as his district is in Southern California. Because Unruh only protects people in California, the most likely targets will be companies with a substantial presence in California. And that makes it more likely that businesses in Representative Correa’s district will get sued than without the OAA.
When Congress used the term “public accommodation” and 12 categories of businesses in the ADA, it was based on similar wording in the Civil Rights Act of 1964. This wasn’t by accident. When Congress chooses to regulate the activities of private individuals or businesses, it has to be very careful and deliberate. Both the ADA and the Civil Rights Act were civil rights laws, where the courts give Congress more leeway in regulating the private citizens. But the Online Accessibility Act is not a civil rights law— it’s stated goal is to protect businesses while also regulating them. So it isn’t at all clear to me what the constitutional basis for covering “any private owner or operator of a consumer facing website or mobile application.”
ANY Private Entity?
California’s Unruh Act is far broader than the ADA and affects “any business activity.” Thus, Unruh has been used to reach condominium association meetings and other activities far beyond the ADA’s potential coverage. Unfortunately, the OAA is FAR, FAR broader and covers, “any private owner or operator of a consumer facing website or mobile application.”
Not only would this cover purely online companies but it also could potentially cover barely-commercial activities. I don’t think that, even the most die hard advocate would say that running a private blog of inaccessible cat photos should expose the blog owner to a $20,000 fine.
Opening the Floodgate to Other ADA Amendments?
I spent the entire Clinton Administration at the Justice Department. Much of that time, however, was spent with a Republican-controlled Congress. A huge concern that all of us had in the back of our mind was that vigorous enforcement would cause Congress to amend the ADA— and dramatically reduce its coverage.
Fast forward 25 years and we now have a Democrat-controlled Congress and a Republican-controlled Senate. But funny things happen when legislation goes through passage— and other portions of the ADA can be cut back, rewritten, or completely eliminated. This probably won’t happen to the ADA as the OAA goes through the legislative process— but there’s no guarantee that some Congressman’s pet peeve against the ADA won’t get slipped in. Let’s all hope that doesn’t happen.
A Great Start but Needs Unruh Limitations
Few of us (except a narrow sliver of the plaintiff’s bar) wants the current wave of web accessibility cases to continue. But without similar limitations on California’s Unruh Act, all we are likely to see is a move to California state court. We’re already seeing that trend, but it will likely become an avalanche.
Limiting the ability of plaintiffs to file web accessibility cases under Unruh is going to take work at the state level-- with state representatives and the governor. These steps may well be underway. But, if they're not, Representative Correa needs to start reaching out now before his district-- and other districts in California-- becomes the new hotbed for web accessibility plaintiffs.
Need to Work with Disability Community
In conversations with my friends in the disability rights community, the consensus was that the OAA was created entirely by the business community— and no one asked the disability community for their thoughts. This is really unfortunate. Not only does the disability community loathe these web accessibility cases as much as the business community, but working with the disability community could have prevented all the problems identified above. After all, the disability community has a little more experience and expertise around disability rights legislation like the ADA. And, at the end of the day, I think that is the greatest shortcoming of the OAA— it’s a lost opportunity for working with the disability community that could improve accessibility while protecting small business.
Much Ado About Nothing?
Most proposed legislation quietly fades into dust. And there’s a very good chance that the OAA will do exactly the same thing. If you’re a Congressman, proposing legislation that purportedly protects small businesses against a legitimate threat (i.e. web accessibility lawsuits)— particularly during a pandemic— is a great way to give the appearance of caring about your constituents. I’ve always said that the art of politics isn’t about creating motion— it’s about the creating the appearance of motion.
Putting my cynicism aside for a moment, meaningful change in this area is needed. Unfortunately, I just don’t see that change coming from within the Department of Justice, so that leaves the ball in Congress’s court to address. I’d be happy to contribute to the conversation. And I think a lot of other people would be willing to lend their voice— and that we’d all be surprised by the harmony of our opinions.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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