Overview
The Americans with Disabilities Act (ADA) has long been the enforcement mechanism to ensure that citizens with disabilities obtain equal treatment and access by businesses. As with many well-intentioned laws, however, the ADA has most frequently been used in recent years by a niche plaintiffs' bar targeting businesses – primarily retailers – based on claims that retailers' websites are not accessible to low-vision or otherwise disabled consumers. Taking advantage of the lack of government guidance of what constitutes "compliance" under the law, the resulting uneven playing field often results in forced, confidential settlements, primarily benefitting only plaintiffs' attorneys.
Indeed, more website access lawsuits have been filed against retailers than any other single type of claim. With COVID-19, the industry faced an unwelcome uptick in these claims, likely because of the ease to bring these claims by simply perusing websites. Businesses eventually stopped holding their collective breath that the Department of Justice (DOJ) would promulgate any guidance once the scheduled 2017 rulemaking was put on hold. But long-awaited relief may finally be in sight: On October 1, 2020, Congressmen Lou Correa (D-CA) and Ted Budd (R-NC) introduced the Online Accessibility Act H.R. 8478 (the Act), which – at long last – would amend the ADA: (1) to provide a website accessibility compliance standard; and – most importantly – (2) to prohibit private actions until specified administrative remedies are exhausted.
New Standard – 'Substantial Compliance' with WCAG
Because there has been no clear website accessibility compliance standard, website access litigation has turned into the Wild West – a plaintiff can always assert that "something" on a website poses a "barrier" to access – regardless of whether such claimed barrier prevented any meaningful use of the site.
Although the Web Content Accessibility Guidelines (WCAG) 2.0 Level A and Level AA eventually became the only target to meet – it was just what the name says – guidelines, and not enforceable law, despite some courts using it as a compliance requirement. Furthermore, the guidelines are regarded as aspirational given the difficulty to meet all of the criteria. Under the Act, businesses would be considered compliant if their site or mobile application is in "substantial compliance" with WCAG guidelines. What "substantial compliance" under WCAG means under the Act is unclear and needs further clarification.
Turning the Tables on 'Barriers': Plaintiffs' Bar Must Overcome Barriers By Exhausting Administrative Remedies
The real relief in the Act is the new set of requirements a private plaintiff must exhaust before an action may be initiated. These steps would not only finally meet the real goals of the ADA to ensure access for disabled individuals, it would also stem the tide of meritless claims.
The private plaintiff would now need to exhaust the following steps before bringing a civil suit: (1) notify the website operator of a compliance complaint; (2) after 90 days, if the site is still not in the plaintiff's view "compliant," then the plaintiff must file a complaint with the DOJ; (3) upon receipt of a complaint, the Attorney General must complete an investigation within 180 days to determine if a violation exists; (4) the Attorney General either determines that there has been a violation or lets the 180-day period expire without making a final determination, and (5) the government does not bring an enforcement action. If the government does initiate an action, upon determination of a violation, a court may grant equitable relief and assess civil penalties up to $20,000 for a first offense and $50,000 for subsequent violations.
Representatives Budd and Correa stated that the intent of the Act is to provide a "predictable regulatory environment" to guide businesses in providing equal online access to their customers, while also stemming the tide of frivolous lawsuits. However, despite the obvious abuses taking place – not to mention the substantial financial burdens on courts and retailers – given that the government has failed to take any action in this area for years, the real issue with the Act is the unlikely appetite the government will have to undertake the duty to investigate, not to mention where the resources would come from to support the investigative requirements. Furthermore, disability rights advocates will no doubt argue that the additional administrative burdens on plaintiffs will hamper accessibility advancements.
Until Then – Retailers Must Remain Diligent
The Act is in the first stage of the legislative process – it has been referred to the House Energy and Commerce Committee and has not yet been sent to the House for a vote. In a time of increasingly polarized politics, a bipartisan bill signals that there is support on both sides of the aisle to fix the broken website access area, but it is still unclear whether the Act has legs, at least in its current incantation, to go the distance. Nevertheless, the Act is at the very least a step in the right direction to address the out-of-control abuses the beleaguered retail industry has been enduring for too long.
Until then, continued diligence is the name of the game and obtaining guidance from counsel with experience in this area is key to keeping your online retail business apprised of developments and taking strategic steps to best protect against claims in the first place. Contact the ADA team in Steptoe's Retail & E-Commerce Group to receive updates on the ADA developments impacting retailers.