United States: Renewed Web And Physical Accessibility Congressional Efforts An Exercise In Futility?

Last Updated: September 4 2019
Article by Minh N. Vu and Kristina M. Launey

Seyfarth Synopsis: Congress Members recently renewed their efforts to take legislative action and urge the DOJ take regulatory action regarding physical and website accessibility, respectively.

You have to give them credit for trying. A group of Senators recently sent Attorney General Barr a letter asking the Department of Justice (DOJ) take action to provide some certainty and relief to businesses regarding website accessibility, and a group of Representatives introduced a bill to provide some relief to businesses from physical accessibility lawsuits. While we appreciate their efforts, we are skeptical either will gain any traction.

On the topic of website accessibility, Senators Grassley, Tillis, Cornyn, Crapo, Ernst, Blackburn, and Rounds sent a letter dated July 30, 2019 to Attorney General Barr following up on the letter a larger group of Representatives wrote to Attorney General Sessions in 2018. The letter sought an update and urged "further action to promote greater clarity, compliance, and accessibility" in the area of website accessibility.

The 2019 letter noted Attorney General Sessions' October 2018 response reiterated the DOJ's position that the ADA applies to public accommodations' websites and that public accommodations have flexibility in how they will comply with the ADA's requirements. But, the response conspicuously lacked any indication that the DOJ would provide guidance to businesses on what it means to provide an accessible website. The Senators' 2019 letter emphasized the need for DOJ guidance in this area given the increasing litigation and conflicting judicial opinions on whether the ADA applies to websites at all: "Regulation through litigation should not be the standard."

The 2019 letter closed by requesting information by August 30, 2019 – regarding what specific steps the DOJ has taken to resolve this issue in the past year, and what it intends to do; whether the DOJ considers the Web Content Accessibility Guidelines (WCAG) 2.0 an acceptable compliance standard for Title III of the ADA; whether a business' resources should be taken into consideration; and whether the DOJ has considered intervening in any pending litigation to provide clarity or to push back against any identified litigation abuses.

Also on July 30, 2019, Representatives Calvert, Cook, Hunter, Walker, Grothman, Turner, Rice, and Wilson introduced H.R. 4099, the latest effort to provide some relief to businesses from physical accessibility lawsuits – with a bit of web accessibility thrown in. The bill – dubbed the "ADA Compliance for Customer Entry to Stores and Services Act", or "ACCESS Act" – would:

(1) Require the DOJ to develop an education program for state and local governments and property owners on "effective and efficient strategies" for promoting accessibility;

(2) Prohibit a lawsuit be filed alleging a violation of the ADA without prior notice be given to the owner or operator of the business and 60 days to provide a plan to cure the violation and 60 days after to make substantial progress on that cure. The notice must specify in detail how the individual was actually denied access to a public accommodation, whether a request for assistance to remove the barrier was made, and whether the barrier was permanent or temporary.

(3) Require development of a model alternative dispute resolution program, apparently similar in concept to the U.S. District Court for the Northern District of California's General Order 56.

(4) Require the Attorney General to complete a study within one year of whether the WCAG 2.0 standards, "accessibility widgets, or providing a telephone number through which members of the public can obtain the same information and services as they would on a website would all provide reasonable accommodation for individuals with disabilities."

The first three provisions are very similar to those in the ADA Education and Reform Act of 2017 (HR 620) which passed the House but gained no traction in the Senate. The fourth provision concerning website accessibility is new. Requiring Department of Justice to conduct a study on alternative methods of providing access to information and functionality on a website iv vbvvvs an interesting long-term academic exercise which might someday provide some fodder for the defense bar, but it will do nothing to provide any relief to businesses facing the barrage of website accessibility claims now and in the foreseeable future. Considering the fate of HR 620, the ACCESS Act is unlikely to become law (though some state efforts, such as in Ohio, have succeeded). We will monitor the bill as well as the correspondence between Congress and keep you updated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions