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The number of website accessibility lawsuits continues to increase. On October 2, 2020, the Online Accessibility Act was introduced in the US House of Representatives. If enacted, it will limit private lawsuits under the Americans with Disabilities Act (ADA).
The Online Accessibility Act proposes to create a new section of the ADA devoted entirely to consumer-facing websites and mobile apps. If enacted, it will:
1. Require only "substantial" compliance with WCAG 2.0 Level A, AA, or "any subsequent update, revision, or replacement to the WCAG 2.0 Level A and Level AA standard published by the World Wide Web Consortium or successor organization." (Note: WCAG 2.1 was released two years ago, and WCAG 2.2 is in the works.) The proposed bill also allows for an "alternative means" of "equivalent access" to digital content-without specifying what this might mean.
2. Require plaintiffs to exhaust all administrative remedies prior to filing suit-namely, notifying the business and allowing 90 days for the website or app to come into substantial compliance, and then (if it's still not substantially compliant) filing a complaint with the DOJ and allowing 180 days for a final agency determination.
3. Require plaintiffs to plead "with particularity each element of [their] claim, including the specific barriers to access." Given that many serial plaintiffs rely on boilerplate complaints, this will impose an additional hurdle to private lawsuits.
While this bill may provide relief to businesses, disability rights advocates will likely view it as a significant setback to website inclusion.
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