On September 29, 2022, United States Senator Tammy Duckworth (D-IL) and Representative John Sarbanes (D-MD) introduced the Websites and Software Applications Accessibility Act.
The legislation is intended to address a key problem with the Americans with Disabilities Act (ADA). Written in 1990, the ADA doesn’t include technical standards for websites or software — and while the Justice Department has indicated that digital products fall under the ADA, the lack of technical standards has created confusion regarding businesses’ obligations.
“Digital innovation is only as powerful as it is inclusive,” said Sarbanes in a press release. “As new and emerging technologies have been incorporated into our daily lives, digital inaccessibility has prevented Americans with disabilities from reaching a broad range of health, education, employment and other critical resources.”
“To address this civil rights issue and remedy this long-standing inequity, we need uniform, consistent standards that lay out what true digital accessibility is and provide adequate mechanisms to enforce it.”
Key Features of the Websites and Software Applications Accessibility Act
The Websites and Software Applications Accessibility Act (or #A11yAct) intends to amend the ADA by establishing new regulations for Title I (employers and labor organizations), Title II (state and local government agencies), and Title II (public accommodations, including businesses, non-profits, and other private entities).
The act’s major requirements include:
- Within a year, the Attorney General must issue a notice of proposed rulemaking for accessibility regulations for Title II and Title III.
- Within two years, the Attorney General and the Equal Employment Opportunity Commission (EEOC) must issue their actual regulations.
- For each of the first three years of the act, the Attorney General and EEOC will prepare a report on enforcement and civil actions.
- After the first three years, the Attorney General and EEOC must issue a report every two years.
- Every three years, the Attorney General and EEOC will publish updated regulations.
- A standing advisory committee would provide guidance on web and application accessibility. The majority of the members of this committee would be people with disabilities.
As written, the act would have enormous implications for digital accessibility. By requiring updated regulations every three years, the #A11yAct would keep technical requirements aligned with future technologies.
And while new regulations can create burdens for businesses, the act addresses this potential point of contention: It would require the Attorney General to fund a “technical assistance center,” which would provide resources for compliance.
Related: What is ADA Website Accessibility?
What digital accessibility standards would the #A11yAct use?
While the Websites and Software Applications Accessibility Act does not include actual digital accessibility standards, the Attorney General would probably build the new regulations around the Level AA requirements of the Web Content Accessibility Guidelines (WCAG).
The Justice Department has regularly cited WCAG Level AA in investigations and structured settlements, and Section 508 of the Rehabilitation Act — the government’s own standards for digital accessibility — incorporates WCAG Level AA by reference.
Related: Is There a Legal Requirement to Implement WCAG?
Will Congress pass new regulations for ADA digital compliance?
The legislation may face an uphill battle in Congress, as all of its sponsors and cosponsors are Democrats. To avoid a filibuster in the Senate, the act would need support from 60 Senators, including at least 9 Republicans.
However, in past years, digital accessibility has received support from both parties. In 2020, the Online Accessibility Act was introduced by Congressmen Lou Correa (D-CA) and Ted Budd (R-NC), but failed to pass during the 116th session of Congress. That bill would have added WCAG 2.0 Level AA conformance to the ADA’s requirements, but it received criticism from accessibility advocates for its perceived shortcomings.
On paper, the #A11yAct has much stronger enforcement methods than the Online Accessibility Act — that’s good news for the accessibility community, but it might open the new legislation to criticism from business leaders and politicians who believe that the ADA is already too restrictive.
The response from accessibility advocates has been largely positive. The #A11yAct is supported by a number of high-profile disability rights organizations including the American Foundation for the Blind, the American Association of People with Disabilities, the National Disability Institute, and Paralyzed Veterans of America.
Even without technical standards, the ADA applies to online content
The bottom line: ADA enforcement would benefit from clear technical regulations. The Websites and Software Applications Accessibility Act is an excellent step in the right direction.
Even if the bill fails to pass, changes are probably on their way. In August, the Justice Department announced plans to amend Title II of the ADA with new web accessibility regulations, and if those changes occur, Title III might be next. The Department is widely expected to use WCAG Level AA as a framework.
And even without technical requirements, the ADA is a powerful tool for digital accessibility enforcement. With the number of web accessibility lawsuits rising, businesses should prioritize conformance with the latest version of WCAG (currently, WCAG 2.1, with WCAG 2.2 expected for release in the coming months).
Creating accessible web content may reduce litigation risks, but there are other powerful reasons to focus on inclusivity. Accessible websites perform well in search engine rankings, improve customer retention rates, and provide a better experience for all users — regardless of their abilities.
To create a strategy for digital accessibility compliance, download our free eBook, Essential Guide to ADA Compliance for Websites. When you’re ready to take the next steps, start with a free WCAG 2.1 Level AA website analysis or contact us to speak with a subject matter expert.
