This week, Sen. Tammy Duckworth and Rep. John Sarbanes introduced a digital accessibility bill called the Websites and Software Applications Accessibility Act (or the #A11yAct, if you're on Twitter) to Congress. If passed, it would build on the Americans with Disabilities Act, and lead to clearer regulations for digital accessibility requirements in the US.
I'm not a lawyer or legal expert, but a web developer with a focus on accessibility — so take this with a grain of salt — but here were some of my takeaways having read the bill.
Legal stuff can be dry, so here's what I think are the biggest takeaways from this bill if it gets enacted into law:
- Businesses' sites and applications need to be accessible, period. Nexus (connection to a physical, brick-and-mortar place of accommodation) won't be a factor.
- Web and application accessibility regulations would get updated every three years. This will help ensure accessibility law keeps up with technology.
- It's still probably not a cure-all, but it's a great start. This bill, if enacted, aims to build on and clarify laws we already have that businesses don't always follow. That said, it gives disabled users a better position for legal recourse against inaccesssible products.
Why Build on the ADA?#
First of all, is a new law necessary? If so, why?
The Department of Justice has long held that the Americans with Disabilities Act applies to websites and other digital services. They issued an opinion on the matter in 1997, and have since reaffirmed their position several times, most recently in March 2022. And yet… going to court with a web accessibility case can be a mixed bag, as some courts hold that websites are required to be accessible, and some courts don't. So what gives?
The Americans with Disabilities Act has had three major growing pains when it comes to digital accessibility:
- A lack of rulemaking. Despite its affirmations that the ADA applies to websites, the Department of Justice still hasn't published regulations for what standards websites will be held to and how those regulations will be enforced. There have been false starts, but right now, the best we've got is an advanced notice of proposed rulemaking for web accessibility regulations as they pertain to state and local government sites, with no clear indication of whether the Department of Justice has any plans to eventually do the same for public accommodations.
- Tethering to physical locations. Much of the "does the ADA apply to websites?" debate in courts has centered around the question of whether websites count as public accommodations. Courts have differed on that front, but the more connected a website is to a physical, brick-and-mortar accommodation, the more likely the court is to rule the site must also be accessible. This is an idea called nexus, and it covers a lot of businesses, but it doesn't really help when it comes to digital businesses.
- Keeping up with the times. The Americans with Disabilities Act was intended to keep up with technology. When deliberating on the ADA, the House Committee on Education and Labor said it "should keep pace with the rapidly changing technology of the times." That said, even though the ADA has been amended several times, it hasn't really kept up. The applicability of the ADA to websites hasn't been clarified in the law itself, let alone its applicability to mobile applications or smart devices.
The proposed Websites and Software Applications Accessibility Act is predominantly focused on those growing pains, ensuring that digital accessibility regulations are finally promulgated and that they're reviewed on a regular, timely basis. Clear, updated guidance will also hopefully reduce the need for lawsuits in the first place.
With that in mind, let's take a look at…
The Bill Itself#
I think it makes sense to break the bill down into three parts:
- How it affirms digital accessibility requirements
- How it sets itself up to keep up with technology
- The support structures it sets up
Affirming Digital Accessibility Requirements#
This bill provides the best definition I've ever seen for web and application accessibility:
"The term 'accessible' or 'accessibility', used with respect to a website or application, means a perceivable, operable, understandable, and robust website or application that enables individuals with disabilities to access the same information as, to engage in the same interactions as, to communicate and to be understood as effectively as, and to enjoy the same services as are offered to, other individuals with the same privacy, same independence, and same ease of use as, individuals without disabilities."
There's several things I love about this definition. For one, it's pretty complete — I can definitely see myself using this definition in future accessibility presentations. For another, the reference to "perceivable, operable, understandable, and robust" means that the bill authors are borrowing language from the Web Content Accessibility Guidelines, the industry standard for web accessibility requirements. Thirdly, it's reassuring that the definition of accessibility provided here calls out that sites and apps shouldn't require disabled users to compromise on privacy or independence for access.
The new rules themselves… read pretty much how I'd expect!
- Employment entities (employers and labor organizations) can't discriminate against applicants or employees via inaccessible sites or applications. This builds on Title I of the Americans with Disabilities Act.
- Public entities (that's your state and local governments) can't discriminate against disabled individuals or bar them from access to information, services, or programs via inaccessible sites or applications. This builds on Title II of the Americans with Disabilities Act.
- Public accommodations (those are your businesses/private entities) can't bar disabled individuals from the full and equal enjoyment of goods and services via inaccessible sites or applications. This builds on Title III of the Americans with Disabilities Act.
- Testing entities (organizations that provide certifications or credentials) are grouped with public accommodations in this bill, and also can't bar disabled individuals from goods and services via inaccessible sites or applications. I'm not sure why they get specific mention, but fair shout, I guess!
- Commercial providers (vendors who provide websites or applications for any of the above entities) can't provide their clients with inaccessible websites or applications.
In a move to tackle the debate over whether public accommodations' websites need a nexus to a physical, brick-and-mortar location, the bill clarifies that these requirements apply "regardless of whether the public accommodation or testing entity owns, operates, or utilizes a physical location for covered use." In other words, if you're a private entity and your website or application is part of how you offer goods and services, it must be accessible, regardless of whether you have a brick-and-mortar location. This is a huge move, since it'd tackle the biggest debate and source of confusion in current web accessibility litigation.
As with the Americans with Disabilities Act, these requirements have stipulations for if the effort to make the website or application accessible would pose an undue burden or would fundamentally alter the nature of the goods or services.
Regulations That Keep Up With the Times#
After a law is enacted, federal agencies put out regulations that describe how those laws will be implemented and enforced. One of the bigger conundrums around web accessibility litigation has been that the Department of Justice hasn't put out any regulations for enforcing web accessibility according to the Americans with Disabilities Act, despite affirming several times since 1997 that the ADA applies to websites. This bill aims to address this lack of regulations around web accessibility, and also ensure that any digital accessibility regulations that come from this stay up to date with the pace of technology.
Once enacted into law, this act would set the following deadlines:
- Within a year of being enacted: The Attorney General must issue (on behalf of the Department of Justice) a notice of proposed rulemaking for accessibility regulations for public entities, public accommodations, and commercial providers. The Equal Employment Opportunity Commission (EEOC) must issue a notice of proposed rulemaking for accessibility regulations for employment entities.
- Within two years of being enacted: The Attorney General and the Equal Employment Opportunity Commission must issue their actual regulations.
From there, it's a matter of keeping the regulations updated as technology advances. The bill sets up a process for periodically reviewing the state of accessibility litigation and a cadence for actually updating the regulations:
- Periodic reviews: For the first three years of the act and then every other year after that, the Attorney General and the Equal Employment Opportunity Commission will prepare a report on the state of enforcement and civil actions under the act, and will present said report to several Congressional committees.
- Updating regulations: Every three years after their initial regulations, the Attorney General and the Equal Employment Opportunity Commission will publish updated regulations.
This cadence for updating regulations is huge. It would allow federal agencies to include, for instance, the current version of the Web Content Accessibility Guidelines in their regulations, and then update to new WCAG versions in a relatively timely manner. From what I understand, three years is pretty fast as far as the law is concerned.
Other Support Structures#
The bill, if enacted, would set up two organizations to serve as support structures.
The first would be a standing advisory committee on web and application accessibility. Excitingly, this committee would be required to be majority disabled individuals — living up to Nothing About Us Without Us. It must also contain other accessibility experts, and it may contain representatives from state/local governments, businesses, commercial providers, and other organizations the Attorney General and EEOC deem relevant. This committee would advise the Attorney General and EEOC on the implications of innovations in technology and accessibility.
The act would also require the Attorney General to fund a "technical assistance center," which would collaborate with disability advocacy groups and with organizations such as the World Wide Web Consortium (W3C) to provide resources for organizations looking to make their sites and applications more accessible, as well as resources for disabled individuals looking to navigate sites and applications.
Additionally, it charges the National Council on Disability to do a study, due within five years of the act being enacted, on the effects of new, innovative technologies on disabled individuals, especially disabled individuals who are also impacted by other axes of marginalization.
I'm really, really excited for this bill, and I hope it gets enacted. It clears up a lot of turmoil in web accessibility litigation — namely the question of nexus — and it looks like a fairly promising way to ensure accessibility law doesn't leave disabled individuals behind as technology advances. These are things that courts have tried to accomplish with the Americans with Disabilities Act, but this bill would make these expectations more explicit. This comes at a time where web accessibility court cases are still on the rise, and while we're three years into a pandemic that has forced large parts of our lives online.
That said… an act like this wouldn't be a cure-all, and that's important to keep in mind. Taking a company to court is expensive and time-consuming, and it's not a viable option for most people — especially when you consider the scale of digital experiences we encounter on a regular basis. The Department of Justice and many courts alongside it have held for a long time that the laws we already have apply to the web and digital experiences, and companies nonetheless resist that. It just might be that the best we can hope for out of this is that clear and effective regulations reduce the number of lawsuits necessary.
Even so, I think this act would be a positive step forward for the web, and at very least, it's something for anyone invested in digital accessibility to keep an eye on.