On October 2, 2020, Representatives Lou Correa (D-CA) and Ted Budd (R-NC) introduced a bipartisan bill titled the Online Accessibility Act, intended to curb predatory website accessibility lawsuits that accuse consumer-facing websites of violating Title III of the Americans with Disabilities Act (“ADA”).
The Online Accessibility Act would take websites and mobile applications outside of Title III of the ADA—which was meant to address accessibility to services provided by physical businesses—and create a new ADA Title VI dedicated specifically to consumer facing websites and mobile applications.
The key points of the proposed legislation are discussed below. But first, a brief discussion of where we are and how we got here.
THE PRESENT LANDSCAPE
The ADA requires places of “public accommodation” to meet certain standards of accessibility for disabled visitors. The statute enumerates several specific public accommodations (e.g., restaurants, hotels, etc.)—all of which are physical locations. Although the question of whether websites conducting online business must also be accessible is not addressed in the legislative text of the ADA, the Department of Justice (“DOJ”) and scores of federal courts have concluded that websites are places of public accommodation and as such must be accessible to all visitors.
The main problem with shoehorning websites into Title III has been that, unlike physical premises, which are heavily regulated, the DOJ has failed to promulgate standards of online accessibility. There is simply not a regulatory standard against which to measure the accessibility of private websites to disabled persons. Despite commencing a proposed rulemaking process in 2010, which contemplated establishing website accessibility requirements based on the World Wide Web Consortium’s (“WC3”) Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (“WCAG 2.0 AA”), the DOJ terminated the rulemaking process in 2017 and has not resumed it. Chaos has followed. Websites of all kinds have been left vulnerable to predatory litigation, and the federal courts have been deluged with thousands of cases. The result has been a patchwork of inconsistent decisions. In October 2019, the U.S. Supreme Court declined to clarify the issue, leaving in place a Ninth Circuit ruling that had determined Title III applies to the Domino’s restaurant chain website and mobile application because each constitutes a “service of a place of public accommodation.” See Robles v. Domino's Pizza LLC, 913 F.3d 898 (2019).
More than 2,800 federal “surf by” lawsuits are now filed each year, with most suits concentrated in three particularly plaintiff-friendly jurisdictions. Generally, these lawsuits are “sue and settle”—indeed, more than 90 percent settle quickly. In the absence of achievable safe harbor standards, the question of whether a website is accessible often presents “factual” issues that preclude pre-answer dismissal. Litigation gets significantly more costly once discovery begins, and the cost of litigation nearly always exceeds the cost of settlement in these...
