There are many conflicts with the recent vote to pass H.R. 620 of the ADA by the House of Representatives. The most alarming is requiring a law where one already exists.
As the House pushes forward waiting for the Senate to vote and turn the bill into law, propaganda from credit unions and the banking industry, along with the uneducated press, continue to be released.
The purpose of H.R.620, ADA Education and Reform Act of 2017, is to find ways to stall and prevent civil lawsuits by handicapped persons facing a barrier to entry of a business. Specifically, Title III of the Americans with Disabilities Act made businesses legally required to make buildings accessible to handicapped persons. This is why you see handicapped parking and ramps for example.
On a state and local level, code enforcement includes making sure places of public accommodation are accessible. Not doing so can mean not obtaining permits and licenses to conduct business. The rights of handicapped persons came into existence in the 1990’s. There has been more than enough time to educate the public on accessibility.
Nevertheless, sponsors of H.R. 620 believe that more time is required, and they wish to create a law to educate businesses on how to be compliant. This is in addition to forcing disabled persons to write a letter if they face a barrier, wait 60 days for a response and wait another 120 days for an effort to resolve the issue.
The Lawsuit Fiasco
When websites began conducting business transactions online, there were no laws requiring websites to be accessible. However, the World Wide Web Consortium (W3C) created a set of standards to help website developers meet the needs of disabled persons anyway.
Included in the scope of guidelines for websites are Section 508, which are recommendations tied to the same Section 508 and related sections of the ADA. All government (.gov) and most educational (.edu) websites choose to meet Section 508. Although they are not legally required to do so, it made little logical sense to ignore the needs of handicapped persons wanting to take classes online or obtain legal documents from the web. In fact, several states insisted on website compliance for their residents.
Ecommerce websites caught on. Again, although not legally required to, many stores follow WCAG2.0 guidelines, also created by the W3C, which are used to build accessible websites that make it possible for disabled persons to make purchases from the web.
There has never been a law by the USA government that required websites to be accessible.
There is a law for structures like office buildings, stores, movie theaters, access to mailboxes and much more.
The lawsuits that spawned H.R. 620 were for websites.
H.R. 620 is supported by financial institutions who were getting slammed with litigation because banking websites were inaccessible.
The ADA Education and Reform Act of 2017 is written to add more legal requirements for a law that already exists for businesses. It does not address website accessibility, which has no legal requirements.
(Sec. 2) This bill requires the Disability Rights Section of the Department of Justice to develop a program to educate state and local governments and property owners on strategies for promoting access to public accommodations for persons with a disability. https://www.congress.gov/bill/115th-congress/house-bill/620?loclr=cga-bill
Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards. https://www.ada.gov/ada_title_III.htm
- There are specific instructions within the law for the public on how to file an ADA complaint.
- There are no instructions for how to file a complaint for a non-compliant website.
There was a promise by the US Government to create an official set of standards for accessible websites, but the ball kept being passed from Administration to Administration, with the current one declaring it will not address website accessibility.
H.R. 620 Sides with Attorneys
The spike in ADA lawsuits over the past 3 years were for websites, especially those in the ecommerce, travel, banking, and healthcare industries. As the general public became more dependent on computer technology, the expectation was that everyone would be included in its use. In fact, the web presents new opportunities for disabled persons.
However, website and application designers did not understand the needs of disabled persons. Unless someone skilled in WCAG is hired, the website was at risk of being sent a civil complaint. The legal profession saw the opportunity to take advantage of the situation, knowing there are no laws for websites, but sending out letters anyway and reaping the financial benefit of representing scores of clients.
There are no financial rewards for lawsuits, according to Title III.
H.R. 620 does not mention the number of lawsuits against brick and mortar businesses. However, it is to them changes to the ADA are intended – not the websites that were being sued for non-compliance.
Rather than having the Bar Association reprimand their own attorneys for filing frivolous lawsuits against website owners for non-existent accessibility laws, the sponsors of H.R. 620 want to revise the civil rights of disabled persons by having them wait for businesses to make corrections that are already required by law.
(Sec. 3) The bill prohibits civil actions based on the failure to remove an architectural barrier to access into an existing public accommodation unless: (1) the aggrieved person has provided to the owners or operators a written notice specific enough to identify the barrier, and (2) the owners or operators fail to provide the person with a written description outlining improvements that will be made to improve the barrier or they fail to remove the barrier or make substantial progress after providing such a description. The aggrieved person’s notice must specify the circumstances under which public accommodation access was denied.
Adding to the absurdity of this misguided amendment is the so-called “education” plan with a budget estimated to be at least $18 million to develop a plan for accessibility and train accessibility specialists for places of public accommodation – not websites.
(Sec. 5) The Judicial Conference of the United States must develop a model program to promote alternative dispute resolution mechanisms to resolve such claims. The model program should include an expedited method for determining relevant facts related to such barriers and steps to resolve accessibility issues before litigation.
Accessibility for the web can continue to be ignored despite advances in computer technology. There continues to be no legal representation for someone who is excluded from the same online tasks as a non-disabled person.
This is discrimination.
Despite what you read about H.R. 620, the intent is to reduce the rights of handicapped persons and completely ignore all the ways in which today’s websites and computer technology can enable them to live with the same rights and freedoms as everyone else.
Does This Mean Websites Don’t Need to Be Accessible?
With regards to website accessibility, as well as software application development, online forms, and the development of tools and assistive software, nothing has changed.
Because of the constant advances, and global acceptance of website accessibility practices, including countries with their own set of guidelines and standards, WCAG and Section 508 standards are constantly reviewed and updated by the W3C committees. WCAG2.1 is available now in draft, and Section 508 was updated and now called Section 508 Refresh.
Most countries accept WCAG2.0 as the global standard. The UK has their own similar guidelines. Bear in mind that operating systems for smart phones have their own unique accessibility requirements and with each new type of software development, new ways to adapt for accessibility are needed.
While there are no laws to enforce any of it, most conscientious companies choose to.
The Senate is expected to debate and vote on H.R. 620, a bill that clearly its sponsors never bothered to read or understand. For if they did, they would know that the lawsuits were for the lack of website accessibility, not public buildings, which are backed by laws already in place to protect the civil rights of disabled persons.
Each state has its own code enforcement for Title III, but nobody can enforce website accessibility exclusion because there are no legal standards for compliance in place.
H.R. 620 cannot solve the issue of drive by lawsuits for websites. It is hoped that members of the Senate do their research before voting.