Proposed Bill Signals Potential Watershed Development in the World of Digital Accessibility
WASHINGTON, D.C. – On September 29, 2022, Senator Tammy Duckworth and Representative John Sarbanes introduced the Websites and Software Applications Accessibility Act (“the Act”), a bill designed to ensure that websites and software apps are accessible to people with disabilities. The Act is meant to establish—for the first time—parameters concerning which digital platforms must be accessible, along with a uniform set of accessibility standards. Although this bill remains in its infancy, entities should take notice of this percolating policymaking, prepare for potential and highly impactful changes to the existing law, and brace for resulting trends in litigation.
Existing Authority on Website Accessibility
The Americans with Disabilities Act (“ADA”) prohibits discrimination against individuals with disabilities in several different arenas, including public accommodations. The U.S. Department of Justice (“DOJ”), the federal agency charged with enforcing ADA regulations concerning public accommodations, has informally taken the position that the requirements of the ADA “apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.” Guidance on Web Accessibility and the ADA, U.S. Department of Justice Civil Rights Division (March 18, 2022). The DOJ, however, has never promulgated any specific standards for website accessibility. Instead, the agency has pointed to existing technical standards assembled by various groups and individuals that provide guidance on the accessibility of website features, including the Web Content Accessibility Guidelines (“WCAG”). The WCAG in its multiple versions covers a wide range of recommendations for making web content more accessible, for example to individuals who use assistive technology like screen readers.
Because the DOJ has never formalized its stance on websites as places of public accommodation, and because there are currently no universally-accepted standards for website accessibility—courts have interpreted digital accessibility complaints with varying outcomes. For example, courts within the First Circuit Court of Appeals (covering U.S. District Courts in Maine, Massachusetts, New Hampshire, and Rhode Island) have found that stand-alone websites or applications can be places of public accommodation regardless of any connection to a public-facing, physical location. Conversely, the Ninth Circuit Court of Appeals (covering U.S. District Courts in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has determined that web-only businesses are not places of public accommodation, absent some nexus to a physical location. The Second Circuit Court of Appeals (covering U.S. District Courts in Connecticut, New York, and Vermont), on the other hand, has never ruled whether websites are places of public accommodation, and the district courts within the circuit are split with recent decisions by the U.S. District Court for the Eastern District of New York holding that online-only businesses are not covered by the ADA absent some nexus to a public-facing, physical location.
These contradicting court decisions have created a problematic patchwork of judicial precedent on website accessibility. Not only do many entities remain confused as to whether their websites must comply with ADA accessibility requirements, they also remain uncertain as to which website accessibility standards to follow. Such confusion in this largely unchartered area of the law has led to a dramatic rise in litigation over the past several years.
Rising Trend in Accessibility Suits Likely to Continue
In 2021 alone there were 2,895 website accessibility lawsuits filed in the federal court system. This number represents a 14% increase from 2020, when 2,523 such suits were filed, which in turn represents a 12% increase as compared to the 2,256 lawsuits filed in 2019. Experts attribute this litigation spike to the surge of internet use during the COVID-19 pandemic, along with the recent rise of e-commerce. Notably, in 2017, only 814 such cases were filed. (As a point of note, these figures do not account for demand letters that never resulted in litigation, nor suits filed in state courts.)
Key Provisions of the Act
As stated above, two of the most notable provisions of the Websites and Software Applications Accessibility Act would: (1) clarify which digital platforms must comply with ADA accessibility requirements, and (2) establish a clear set of digital accessibility guidelines.
With respect to the first point the Act, if passed, would confirm that it is unlawful for any entity currently covered by the ADA to maintain inaccessible websites and software applications that exclude or otherwise discriminate against individuals with disabilities. This is true even if an entity’s website is not tied to any public-facing, physical location. The Act also goes beyond the existing ADA to cover commercial providers who design, develop, and modify websites or applications and requires them to follow the accessibility regulations identified in the Act. Additionally, the bill would provide for a private right of action and would notably prohibit the enactment of any requirement that a plaintiff notify an entity of a violation prior to bringing suit. In further departure from current federal law that limits relief in public accommodation cases to injunctive relief and attorney fees, the Act would further allow the recovery of economic and noneconomic damages, including compensatory and punitive damages. (Note, however, that some current state and local laws already allow recovery of economic damages for website accessibility claims.) These provisions of the Act would be effective six months after its enactment.
With respect to the second point, the Act contemplates a clear, enforceable accessibility standard. More specifically, the bill would require both the DOJ and the Equal Employment Opportunity Commission (“EEOC”) within two years to issue regulations ensuring that individuals with disabilities have access to the same information as non-disabled individuals, can engage in the same interactions as non-disabled individuals, can communicate and be understood as effectively as non-disabled individuals, and can enjoy the same services as non-disabled individuals. Such regulations would include standards for accessible websites and applications. Additionally, the bill would also establish a technical assistance center and advisory committee to provide advice and guidance on accessible websites and applications and would authorize a study on addressing emerging technologies. These provisions of the Act would be effective 12 months after its enactment.
Potential Impact if Enacted Would Be Significant
If signed into law as currently drafted, the Act would mean sweeping changes for virtually every public and private entity in the U.S. Obviously, the biggest change would be that all entities covered by the ADA that operate a website and/or application would consequently operate a place of public accommodation covered by the ADA, regardless of existing judicial opinions. Additionally, these entities will eventually need to comply with the forthcoming digital accessibility guidelines from the DOJ and the EEOC. However, until the DOJ and the EEOC publish these regulations, entities will be in a somewhat vulnerable limbo—subject to ADA website accessibility requirements, but still waiting for a clear accessibility standard. Considering the recent trends in ADA website accessibility litigation and the anticipation surrounding a bill of this nature, it is more than likely that we will see another spike during this interim period, when it is understood that entities must have accessible websites, but there remains no clear-cut standards for ensuring the same.