Online Accessibility Act Review

Capital Hill

The Online Accessibility Act is a bipartisan bill introduced by Congressmen Lou Correa (D-CA) and Ted Budd (R-NC) that amends the Americans with Disabilities Act (ADA) to “include consumer facing websites and mobile applications owned or operated by a private entity.”

I like the push for a much needed amendment to the ADA but what I hate is the bureaucratic process to file a complaint against an entity who is in non-compliance.

For this reason alone, I would banish the bill back to the drafters to be revised.

Also, section (b)(2) is bad.

But, this is generally what the United States needs: an amendment to the ADA that addresses web accessibility.

I would like to see some improvements. My qualms are bedded in the commentary below.

Here is the full text of the Online Accessibility Act.

For the rest of this article, I’ll extract some of the more important selections of the Online Accessibility Act “OAA” and provide my commentary.

Bill:

“Title VI — Consumer Facing Websites and Mobile Applications Owned or Operated By A Private Entity”

Commentary:

The OAA is focused on websites and mobile apps but doesn’t specifically mention anything else digital.

Bill:

“shall be considered compliant… if such website or mobile application is in substantial compliance with the Web Content Accessibility Guidelines (referred to in this title as WCAG) 2.0 Level A and Level AA…or any subsequent update, revision, or replacement to the WCAG 2.0.”

Commentary:

WCAG 2.0 AA is the standard for compliance for the OAA. What the bill says is you can go beyond this with 2.1 or 2.2 (when it’s released in 2021) and be considered compliant but 2.0 AA is the standard.

I’d like to see WCAG 2.1 as the standard.

Also note the “substantial compliance” language. This is critical because it acknowledges that complete conformance is extremely difficult to achieve — especially because 1) there’s a subjective component to some aspects of accessibility and 2) conformance with some of WCAG’s success criteria (think of them as accessibility items to account for) can take significant time / money to reach.

Bill:

“A private entity that owns or operates a consumer facing website or mobile application that is not in substantial compliance with the standard set forth…shall provide an alternative means of access for individuals with disabilities that is equivalent to access the content available on such website or mobile application.”

Commentary:

This section is ambiguous but I found the reasoning beyond it:

WCAG permits alternate conforming versions of web pages in limited circumstances.

An alternative means of access is a very minor exception that will be inapplicable for the vast majority of websites. It needs to be at least clarified because, on the surface, it looks like it’s opening the door for alternate websites.

Bill:

“The Access Board shall issue and publish…a definition of ‘substantial compliance, alternative means of access, and consumer facing website or mobile application and regulations necessary to implement the standard”

Commentary:

Nicely done. This leaves the details — including the question about alternative access above — to an agency with knowledge and expertise.

Bill (Paraphrased — not exact language):

  • Within 180 days of the enactment of this Act, Access Board shall issue notice of proposed rulemaking
  • Public comments are allowed for 90 days
  • A regulatory assessment shall be made within 90 days
  • Within 365 days of the assessment, final regulations shall be issued

Commentary:

It will very likely be close to two (2) years before the Access Board issues final regulations.

Bill:

Regulations established under this section shall include flexibility for small business concerns to comply with the standard under subsection.

Commentary:

They’re telling the Access Board to take into account financial feasibility. How this is addressed by the Access Board will have enormous implications both for people with disabilities and small business owners.

Bill:

No individual may bring an action before a civil court to enforce the provisions of this title until all administrative remedies under this section have been exhausted.

Commentary:

Large implications.

Bill (Paraphrased with my subjective interpretation — not exact language):

Prior to filing a complaint, an individual must first notify the private owner or operator…is not in compliance.

  • If within 90 days, the owner doesn’t bring their website and/or app into compliance, than the individual may file a complaint with the DOJ.
  • A complaint shall be filed within 90 days after those initial 90 days expire
  • The DOJ has 180 days to determine whether a violation exists
  • If the DOJ doesn’t make a final determination, then that lack of determination is a determination
  • There’s more…

After an individual goes through the above process, then they can commence private action.

Commentary:

This is bad. This is really bad.

This puts us right back into bureaucracy land where nothing gets done about accessibility.

There is so much to unpack here but I’ll just add one note for now:

There is no way that the DOJ is equipped to handle these complaints. Not even close — which means they won’t.

My suggestion: An individual provides notice to the owner / operator and if their website and/or app is not in substantial conformance within 60-90 days, that individual can take private action or file with the DOJ.

Finally having formal guidance would be great but the process for taking action against those who are not in compliance is horrendous.

If you don’t provide an effective way to enforce the law, then you may as well not have a law at all.

Digital accessibility dramatically, significantly affects people across the world. We currently have momentum towards accessibility and that momentum must be carried forward with a new law, not stymied.

I hate the take-a-number, stand-in-line DOJ part of this bill.

No more waiting.

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