Is web accessibility under attack?
Two days ago the U.S. House of Representatives passed a bill (H.R. 620) amending the main statute that not only promotes, but mandates, accessibility, namely the Americans with Disabilities Act (“ADA”). The bill falls into the general category of “tort reform”. If adopted by the Senate, it would impose new restrictions on the filing of lawsuits to enforce accessibility rights for the disabled.
Web accessibility is a specialty within two fields: (1) accessibility and (2) software development. For the last 40 weeks I have been enrolled in a 40-week retraining program in software development at Learners Guild in Oakland, California, and during the last few weeks of my just-ended traineeship I have been specializing in web accessibility.
So, did the House of Representatives just jeopardize the value of my web-accessibility specialization?
Questions like that have been floating around the accessosphere. Some discussants have claimed that the bill, if it became law, would not directly affect web accessibility, because it deals only with physical facilities (like wheelchair ramps).
Really? Is web accessibility beyond the scope of H.R. 620? Not in my opinion.
Our vocabulary still exhibits traces of the notion that the physical and the virtual (or Internet-mediated) worlds are things apart (“real world”, “bricks and mortar”, “virtual”, etc.), but the distinction is receding from popular intuition, and the courts, when they interpret the ADA, have been subjecting that distinction to critical scrutiny. U.S. courts are currently divided about this, but it would be reckless to merely assume that the judicial consensus, when it emerges, will hold websites per se harmless from liability under the ADA, or unaffected by H.R. 620 if it became law.
The expansive view of the ADA adopted by some of the circuit courts, as expressed last August by a U.S. District Court judge, is that “it is the sale of goods and services to the public, rather than how and where that sale is executed, that is crucial when determining if the protections of the ADA are applicable” (Andrews v. Blick, p. 14). “It is unambiguous”, he went on to conclude, “that under Title III of the ADA, dickblick.com is a place of public accommodation” (p. 16). His argument relied partly on construction of the ADA text, partly on that statute’s “broad remedial purpose” (p. 20), and partly on a need to “avoid ‘absurd’ results” (p. 21).
According to a summary of 2017 web-accessibility litigation by a law firm that defends against such litigation, the prevailing outcomes were defeats for defendants trying to have cases tossed out early for facially invalid claims.
In conclusion …
In light of what I have learned so far, it seems prudent to suspect that any attack on the right to accessibility for the disabled is an attack on web accessibility, too.
That does not imply, however, that H.R. 620 imperils web accessibility as a species. Here are some reasons:
- The bill may never become law. There has been little activity in the Senate aimed at considering it, and the nearly party-line vote that got it adopted in the House does not augur well for its fate in the Senate, even if it were to be introduced there.
- If it did become law, it might actually protect the ADA against further attack, by calming the unrest in the business community about so-called “drive-by serial ADA lawsuits”.
- The bill requires the Department of Justice to “develop a program to educate State and local governments and property owners on effective and efficient strategies for promoting access to public accommodations for persons with a disability”. It can “include training for professionals such as Certified Access Specialists”. Some day, Congress and the Department might take that seriously and provide meaningful support for making accessibility a routine feature of both physical and digital properties.
- Web accessibility may be deemed mandated by the ADA, but that does not mean that its incentive structure is identical to that of physical-plant accessibility. Retrofitting a website to comply with accessibility standards, advocates claim, tends to make the site more usable in general and gets the site rewarded by search engines. It’s also likely to cost less than retrofitting a building. Websites tend to get redesigned more frequently than buildings (how many 50-year-old websites do you know of?). So, typically, it won’t be long before the site undergoes a makeover, and weaving accessibility into at at that time may add quality at little or no cost.
So, I believe that current anti-regulatory activism affects web accessibility, too. But I’m not ditching this field. It’s becoming more controversial, and that has its benefits. For one, it keeps the subject blog-worthy!