On January 3rd, 2021, a bipartisan bill, The Online Accessibility Act (H.B. 8478), failed to pass. If you haven’t been following the bill, here is a quick recap. The purpose was to clear up perceived digital compliance “grey areas” of the Americans with Disabilities Act (ADA) while protecting the rights of people with disabilities and reducing the surge in related ADA lawsuits.
Why Did The Online Accessibility Act Fail?
The Online Accessibility Act failed because it limited the civil rights of people with disabilities. Equality, for all, is something lawmakers need to consider when proposing legislative initiatives.
The bill didn’t fail wholly on civil rights; it failed because digital accessibility is no longer a grey area of the law. The ADA clearly defines the rights of people with disabilities, and the courts concur.
The ADA states clearly that equal access to goods, services, and information is a civil right for people with disabilities. The law also defines that public spaces are to comply with the ADA. Today, the internet is considered a public space. The internet was not mentioned in the ADA because, in 1990, it wasn’t a public space, meaning it wasn’t accessible by the public.
Per the case law, everything on the internet should be accessible. All websites, digital platforms, attachments, pages, apps, software, and hardware must be accessible for people using assistive technology or adaptive technology.
Was There a Grey Area in ADA Digital Compliance?
Some might say all laws have grey areas. Before 2017, the Department of Justice (DOJ), Office of Civil Rights (OCR), received reports and oversaw most ADA violations. These cases rarely made it to a court of law. Grey areas of the law are mainly those without a specific court ruling, which contributed to the confusion surrounding ADA digital compliance. Laws without precedent are often ignored, violated, and met with an attitude of, ‘Until we are made to do something its business as usual. ‘
The concern of a grey area occurred after former President Trump took office. He created the Unified Agenda as an executive action. The Unified Agenda reprioritized the concentration of the DOJ by making some duties “inactive”. Many laws that pertained to people with disabilities were on the “inactive” list of enforcement and investigation for the DOJ. Many contested the administrative action, but just maybe, it was a blessing in clearing up the “grey areas” in digital accessibility.
The laws protecting people’s rights still existed and were enforceable, but under the Unified Agenda, the enforcement would need to go through the court system. So, people with disabilities and ADA advocates flooded the court system with lawsuits. And, the courts began ruling in favor of people with disabilities. These cases quickly went through the court circuit, even reaching the supreme court.
“Grey Areas” of the ADA Law Become Clear
In each of the ADA digital compliance lawsuits, the judge had to consider the ADA’s intention. Then, the judge had to decide if the internet and digital spaces were accessible to the general public. The courts then look at what defines equal access and ruled that the ADA intends all businesses, not-for-profit organizations, state/local agencies, and the government to provide it. And, this includes the web since it’s a public space.
The court then decided since the DOJ was working with The World Wide Web Consortium (W3C) on accessibility standards, they were the experts, and Web Content Accessibility Guidelines (WCAG) became the standard for achieving online equal access.
The uptick in ADA lawsuits caused quite the uproar among businesses, government agencies, and investors. The overall argument of those who find themselves on the wrong side of the ADA is, there are no guidelines or standards to follow. This claim is what paved the way for The Online Accessibility Act. However, in the case of ADA laws, there have been enough court rulings (case law) to establish precedence and intent. The proposed bill was redundant.
Today, the grey areas of law regarding digital accessibility are nearly nonexistent thanks to the WCAG standards. These standards will evolve with technology, leaving the ADA laws clear for interpretation for years to come.
This post was written by Christine Sket
Originally published at https://brailleworks.com on February 18, 2021.