Source: Nation's Restaurant News
Here's what restaurant owners need to know about the new Online Accessibility Act introduced to Congress, according to a defense attorney.
Anastasia Protopapadakis talks about how the proposed legislation would affect businesses, and what operators need to do to be in compliance.
As lawsuits over Americans with Disabilities Act accessibility on websites and mobile apps became increasingly common — including a high-profile case involving Domino’s, which went to the Supreme Court in October 2019 — Congress has just introduced the bipartisan-supported Online Accessibility Act, which would extend the legislative breadth of the ADA. Under this extension, businesses would have to make their websites accessible to visually impaired users.
Defense attorney Anastasia Protopapadakis — who represents businesses in ADA compliance and digital accessibility cases for GrayRobinson law firm in Orlando, Fla. — talked with Nation’s Restaurant News about what the new legislation could mean for operators, how it differs from what’s already being enforced in courtrooms, and how business owners can prepare and comply if the legislation is passed.
What should restaurants know about the Online Accessibility Act?
The Online Accessibility Act doesn’t seem to be different than what courts are already enforcing in private settlements. For consumer-facing websites and mobile, you would have A or AA standards [the Web Content Accessibility Guidelines designate three levels of conformity ranked from A to AAA]. A is lowest form of accessibility and courts have been enforcing the more enhanced AA standards. […] It’s all very technical, but AA for example, requires a higher level of contrast [for visual impaired assistive technology to be able to “read” the content to the user].
According to the legislation, if you can’t comply with A or AA, you can provide an alternative access equivalent, but they don’t provide specific guidance on that. If this passes through Congress they’ll look to the Department of Justice to come up with a rule for an alternative to providing equal access to content, say you have to have 24-hour hotline where a vision-impaired person can call for help, though that won’t necessarily be cheaper than redoing your website or app.
How is the proposed legislation good for businesses?
The most pro-business part of this proposed legislation is that it creates a pre-suit notice exhaustion of remedies requirement. Right now, you don’t have to give the business notice and tell them your issue before you file a complaint, you can just file one right away. This bill requires the the plaintiff to give a 90-day notice to fix before they have a lawsuit. […] That tells me that this bill is squarely aimed at reducing number of serial plaintiffs that file mobile/website lawsuits.
After that 90 days, if that business does not bring it into compliance then the plaintiffs can submit a complaint to the Attorney General’s office and the Attorney General will have 180 days to investigate. […] We’re looking at 270 days, or almost an entire year that a plaintiff would have to wait to file a lawsuit. Critics are saying that this delay in process is an infringement of the enforcement of ADA. […] A lot of people from the access world will be strongly against this.
After the public hearing, they might say “we should be enforcing Web Content Accessibility Guidelines 2.1 standards” which enhance the AA standards and includes and it’s more to have people with visual, auditory, physical, speech, cognitive, language, learning, and neurological disabilities. If we had to concede [to these standards] it probably wouldn’t be that big of a deal for businesses.
How would this legislation help businesses?
The bulk majority of accessibility lawsuits are from visually impaired users, and as a defense lawyer I see the same plaintiffs and law firms over and over again, particularly from three “hot spot” states: California, Florida, and New York. A lot of the times these businesses getting hit with lawsuits aren’t just getting it once, sometimes they’re getting sued multiple times.
From a business standpoint, there aren’t really any concrete guidance from as to what makes a website compliant. […] Having a pre-suit notice requitement is not a horrible thing if your true intention is that websites become accessible. Restaurants run on such tight margins that getting hit with a lawsuit like that if you’re a small mom and pop café, it can cost thousands of dollars. Some clients have even chosen to take down their websites completely because they can’t afford to comply and pay lawyer fees.
How can businesses begin to ensure their websites and apps are accessible?
A small mom and pop busines won’t have an IT department to deal with this. If you are a small business, you can hire a company with knowledge in AA criteria who can go through your website and make sure it’s coded correctly. Remediation companies will run a scan of your website and if you just have a simple website with a landing page and a menu page, let’s say, then it’s not that expensive. But if your website has several pages and third-party content, it can be quite costly.
They do a live user scan of your website and app using the JAWS program to see where the accessibility issues are on your website, like making sure that your text is high-contrast so JAWS can read it and that the alt-text is accurate on photos so the program can “read” images to the user. Also, websites are not static, so you’ll have to make sure that anything you add to your website continues to be compliant with accessibility guidelines. Businesses need to get periodic scans every quarter or so to keep it updated.