By: Anastasia Protopapadakis, Shareholder
A new bill introduced to Congress aims to set the standards for website and mobile application compliance under the Americans with Disabilities Act ("ADA"). The Online Accessibility Act ("OAA") seeks to specifically include consumer-facing websites and mobile applications operated by private companies to the definition of "public accommodations" under the ADA, essentially codifying what Courts around the nation and parties in private settlement are already enforcing.
Specifically, case law from most jurisdictions across the nation already hold that websites and mobile applications are covered under the ADA. In some jurisdictions, like in Florida for example, a website or mobile application is required to be accessible only if there is a physical nexus between the website or mobile application and a brick and mortar store.
In these jurisdictions, purely online businesses with no connection to a physical storefront do not need to meet accessibility standards under the ADA. Under the OAA, however, the physical nexus test may no longer be applicable, and consumer-facing websites and mobile applications operated by private companies may be required to be accessible regardless of their connection to a physical location.
The OAA also proposes that the Web Content Accessibility Guidelines ("WCAG") 2.0 A or AA standards become the standard for website and mobile application compliance under the ADA. The WCAG 2.0 AA standards are already being enforced by courts and accepted by parties in private settlement as the compliance standard for websites and mobile applications.
But, the OAA seems to also allow for a lower standard of compliance, the WCAG 2.0 A standards. The OAA also states that websites and mobile applications need only be in "substantial compliance" with the WCAG 2.0 A or AA standards, but provides no guidelines to determine what constitutes "substantial compliance."
Additionally, the OAA allows for an alternative method of compliance. Specifically, the OAA states that private businesses may provide "equivalent access" to content on their websites and mobile applications through an "alternative method" and still be in compliance with the ADA. Here again, there is no guidance on what alternative methods can be used to provide such equivalent access. It will likely be up to the Department of Justice ("DOJ") to issue regulations in this regard.
But, the most important part of the OAA for private businesses is that it creates a requirement for exhaustion of administrative remedies before a lawsuit may be filed. This requirement is squarely aimed at reducing the number of ADA website and mobile application accessibility lawsuits that are filed every year. In 2019 alone, over 2,000 such cases were filed in the nation’s federal courts.
Under the OAA, would-be plaintiffs must first provide a private business with pre-suit notice of non-compliance under the ADA and 90 days to cure the alleged accessibility barriers on their website and/or mobile application before filing a lawsuit. If there is no cure within the 90-day period, the aggrieved party may file a complaint with the DOJ, after which the attorney general may investigate within 180 days to see if a violation exists.
A determination of the attorney general is deemed final if either i) the attorney general determines that the website or mobile application is not in compliance with the OAA’s standards or ii) the 180 days expires with no such determination by the attorney general. Once the aggrieved party has exhausted these administrative remedies, they may file a lawsuit unless the attorney general has instituted an enforcement action discussed below.
The OAA also sets forth an investigative and enforcement action process for the attorney general. If the attorney general has reasonable cause to believe that any person is engaged in a practice of discrimination or if any person has been discriminated against under the OAA and that discrimination raises an issue of general public importance, the attorney general may institute a civil cause of action against the discriminating party.
In such enforcement actions, the Court may grant equitable relief, order monetary damages, and asses a civil penalty not to exceed $20,000 for the first violation and $50,000 for subsequent violations. The allowable monetary damages does not include punitive damage, and, as a mitigating factor, the Court may consider good faith efforts to comply with the OAA.
This is an expansion of allowable damages in ADA website and mobile application cases, as the ADA provides only for injunctive relief and the recovery of attorney’s fees and costs. What is unclear, however, is whether the remedies available in an attorney general enforcement action will also be available to plaintiffs who file civil actions.
While there is still come uncertainty in the application of the OAA, there does seem to be some benefits to private business. First, the requirement of pre-suit notice and exhaustion of administrative remedies will likely mean that it will be harder for serial plaintiffs to file the volume of ADA website and mobile application accessibility lawsuits that have been filed in the past. Additionally, private businesses may adhere to a lower standard of compliance or even use an alternative method to provide equivalent access, which may reduce the cost of remediation.
Critics of the OAA take the position that the OAA is unnecessary because the ADA already includes websites and mobile applications under the definition of "public accommodations." They also take issue with the pre-suit notice and exhaustion of administrative remedies requirement, which they feel serves as a delay method and limits the enforcement of the ADA through private lawsuits.
Some critics point out that the OAA only covers private business and does not at all address government websites or workplace technology. Moreover, they take issue with the lower compliance standard requirements and the use of an alternative method to provide equivalent access, arguing that the standard for accessibility should be the newer WCAG 2.1 standards.
The OAA is certainly not perfect. But some aspects of it, like the pre-suit notice and exhaustion of administrative remedies requirement, may be a step in the right direction to help curtail the volume of ADA website and mobile application accessibility lawsuits filed every year.