After Years of Inaction, Congress Introduces Web Accessibility Bill

Nov 03 2022

For years, Congress has been incapable of enacting (and even introducing) legislation that would have a meaningful impact in assisting the millions of disabled Americans currently disenfranchised by discrimination on the internet.

On September 28th, 2022, Senator Tammy Duckworth [D-IL] and Representative John Sarbanes [D-MD3] introduced the “Websites and Software Applications Accessibility Act” into their respective chambers. The legislation, amongst many other things, sets out to establish a compulsory national standard for web accessibility that is extended to public and corporate entities alike. The law’s introduction comes on the heels of a letter signed by several members of Congress placing political pressure on the Department of Justice to issue comprehensive regulations concerning an enforcement standard for the web accessibility guidance that currently exists. To find out what the law sets out to do, see below.

A New National Standard

The “Websites and Software Applications Accessibility Act” would join other landmark technology related laws in creating legislation that would have such a pervasive effect on users. Over 61 million Americans identify as disabled, and the overwhelming majority use the internet. Currently, no enforceable web accessibility standard has existed under statutory purview. At various times, the Department of Justice (DOJ), in its power to promulgate regulations, has issued guidelines for web accessibility that it sporadically decides to enforce. Recently, under political pressure from members of Congress, the DOJ began cracking down on institutions operating inaccessible websites that constitute as a place for public accommodation. (opens in a new window) This law seeks to codify a national requirement whereby “websites and applications used by any covered entity to communicate or interact” with users would be required to be readily accessible to individuals with disabilities. Not only does this law seek to establish a national standard, but such standard would be imposed regardless of a nexus between a website and its physical location.

So, what is this new national standard? The law is intentionally vague on what the standard itself is, leaving it up to the DOJ to produce a standard which shall be revisited on a set timed basis such that the standard remains a living and relevant framework by which one can assess the accessibility of their website. The DOJ is required to begin their rulemaking process within 12 months of the enactment of the bill (should it become law) and shall render a final rule no later than 24 months. The more interesting components of this standard are the covered aspects of a website (who/what is included under its purview), the avenues for relief, and the changes to current judicial interpretation concerning the application of said national standard.

What’s new about this?

Who is considered a covered entity under this law? What is considered covered use? As of Summer 2022, the DOJ maintained a policy of enforcing accessibility for websites of entities whose businesses would constitute as a place of public accommodation. This bill modifies that coverage to include other entities involved in commercial activities, as well as other types of technology. If passed, the regulations would be enforceable to technology such as “applications and software in “smart” devices, such as cars, refrigerators, tractors, phones, thermostats and so on”, instead of just websites. Additionally, the scope of the entities who would find themselves under the jurisdiction of this mandate would expand drastically. Entities who do not currently fall under the definition of a place for public accommodation would be subject to the enforcement powers of the law. Such areas expanded into would include commercially based entities (those selling or engaged in commerce), communication driven technologies, and employers.

Beyond being a major expansion of anti-discrimination rights, the law serves to expand the capabilities for individuals to seek relief in instances where their rights may be infringed upon. Individuals would have the ability to seek relief in class and on an individual basis in a manner that hasn’t been seen yet. Plaintiffs will be afforded greater latitude in the types of relief sought. Additionally, the bill seeks to eliminate the “nexus requirement” that has been enforced by many of the appellate courts in the United States (no longer would a physical nexus need to exist between a physical location and a provider’s webpages for it to be subject to web accessibility guidance). For additional information, see a “section-by-section” summary and/or a “frequently answered questions page” provided by the bill’s sponsor, Sen. Tammy Duckworth.

For additional information, see a “section-by-section summary (opens in a new window)" and/or a “frequently answered questions page (opens in a new window)” provided by the bill’s sponsor, Sen. Tammy Duckworth.

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