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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

December 15, 2020

ADA Accessibility Lawsuits: House Introduces Bill to Address Website and Mobile Application Accessibility

Representatives Lou Correa (D-CA) and Ted Budd (R-NC) recently introduced a bill in the US House of Representatives called the Online Accessibility Act (OAA), which would amend the Americans With Disabilities Act (ADA) to, among other things, prohibit discrimination by any private owner or operator of a consumer-facing website or mobile application, establish web accessibility standards for such websites and mobile applications, and create a process pursuant to which private consumers must first exhaust administrative remedies before filing a lawsuit against an owner or operator for alleged discrimination.

More specifically, under the proposed bill, “a consumer facing website or mobile application shall be considered compliant . . . if such website or mobile application is in substantial compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level A and Level AA standard established by the Accessibility Guideline Working Group, or any update, revision, or replacement to the WCAG Level A and Level AA standard published by the World Wide Web Consortium,” an international organization that develops the WCAG technical standards. Notably, a private entity that owns or operates a consumer-facing website or mobile application that is not in substantial compliance with the WCAG standards could still comply with the ADA by providing “an alternative means of access for individuals with disabilities that is equivalent to access the content available on such website or mobile application.” The Architectural and Transportation Barriers Compliance Board (Access Board) is tasked under the OAA with defining the terms “substantial compliance,” “alternative means of access,” and “consumer-facing website or mobile application,” and the OAA also directs the Access Board to develop regulations necessary to implement the standard for compliance.

Further, as drafted, the OAA would require an aggrieved person with a disability to exhaust administrative remedies before commencing a lawsuit. The individual must first notify the owner or operator that its website or mobile application is not in compliance with the WCAG. If within 90 days of notice the owner or operator fails to bring the website or mobile application into compliance, the individual then has 90 days to file a complaint with the Department of Justice (DOJ). Once the DOJ receives a complaint of an alleged violation, the attorney general (AG) shall, within 180 days, complete an investigation to determine whether a violation exists. If the AG does not make complete its investigation within 180 days, or if the AG finds that a violation exists but does not initiate an enforcement action, only then may an individual file a lawsuit in federal court against the owner or operator of the website or mobile application.

“A civil action under [the OAA] is the sole and exclusive remedy for any person aggrieved by the failure of any consumer facing website or mobile application” to comply with this law, and any such “complaint shall plead with particularity each element of the plaintiff’s claim, including the specific barriers to access a consumer facing website or mobile application.” In any such civil action, the district court may grant equitable relief, order monetary damages (not including punitive damages), or assess a civil penalty not exceeding $20,000 for a first violation or $50,000 for any subsequent violation.

If you have questions regarding the content of this alert, please contact J. J. Pelligra, associate, at jpelligra@barclaydamon.com; Rob Thorpe, counsel, at rthorpe@barclaydamon.com; or another member of the firm’s Labor & Employment or Commercial Litigation Practice Areas.

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