Americans with Disabilities Act
The Americans with Disabilities Act, passed in 1990, prohibits discrimination on the basis of disability in employment, State and local government, public accomodations, commercial facilities, transportation, telecommunications, and the US Congress.
Most of the statutes resolve around forcing businesses and other entities to provide qualified individuals an equal opportunity to benefit from the full range of employment-related opportunities available to others. Government entities, regardless of size, must also provide equal access to programs and services; public transportation must be accessible; and public facilities must meet certain accessibility standards.
While most of these requirements are not necessarily Web related, Title III of the Act covers business and nonprofit sectors and prohibits exclusion, discrimination, and unequal treatment with regards to their facilities, educational courses, privately operated transportation, and other accomodations. This has been extended via trial law to encompass internet services that must also comply with the public accomodations provisions of Title III.
Table of contents:
- Americans with Disabilities Act, Title III
- Legal Developments
- Implications for Universal Web Design
- Additional Resources
Key point:
The Americans with Disabilities Act applies the concepts of Section 508 -- which covers Federal agencies -- to private business and non-profit sectors as well as State and local governing bodies. Services provided via the Web must not discriminate against or otherwise exclude users based on disability.
Americans with Disabilities Act, Title III
A reproduction of parts of the text of Title III (Section 302) of the ADA, entitled Prohibition of Discrimination by Public Accomodations is included below. The key points that have ramifications for Web technology are highlighted. A text version of the entire Act is available from ADA.gov.
- General Rule.--No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or operates a
place of public accommodation.
[. . .] - Denial of participation.--It shall be discriminatory to
subject an individual or class of individuals on the basis of a
disability or disabilities of such individual or class, directly,
or through contractual, licensing, or other arrangements, to a
denial of the opportunity of the individual or class to
participate in or benefit from the goods, services, facilities,
privileges, advantages, or accommodations of an entity.
[. . .] - Separate benefit.--It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.
[ Back to Top ]
Legal Developments
Hooks v. OKBridge, Inc.
Defendant OKBridge, Inc., operated a web site that allows those who purchase a membership to play in various bridge tournaments on the internet and to participate in on-line discussion groups regarding the game. Appellant Harold Hooks had his membership terminated and filed suit against OKBridge for violating the ADA; OKBridge claims they revoked his membership because he was posting obscene messages and cheating, while Hooks claimed these allegations were only a pretext for terminating him because he suffers from Bi-Polar disorder and other disabilities.
The district court decided in favor of OKBridge, claiming the ADA did not cover OKBridge because its services were provided over the Internet in people's homes rather than in a specific physical location. Hooks appealed, and the US Court of Appeals (5th Circuit) reversed the decision in favor of Hooks. The argument was summarized as follows:
- "This reasoning would render a wide range of ordinary service establishments outside the coverage of the Act whenever their services are provided over the telephone, through the mail, via the internet, or at some location outside the premises of the business. For example, catalog merchants, furniture delivery companies, courtroom lawyers, plumbers, and food delivery services would be able to refuse to serve patrons with HIV, mental illness or other disabilities."
- "Moreover, a company that offers services both on-site and through other means (such as a travel service that arranges reservations both over the phone and at a walk-in office) would be required to offer non-discriminatory services on-site, but be free to discriminate over the phone or the internet."
- "Neither the language of the statute, nor the underlying purposes of the Act, require or permit such an absurd result. The statute covers the services 'of' a place of public accommodation, not 'at' the place public accommodation. The definition of a 'public accommodation' is intentionally broad and is not limited to those entities providing on-site services."
- "The absence in the statute of any specific mention of web sites or the internet is not a reason to exclude services provided by this medium. When Congress enacted the statute, the World Wide Web had not yet been invented and commercial traffic on the nascent internet was prohibited."
In sum,
The ADA was reaffirmed by law in this court case to include businesses that offer their products or services via channels, such as the Web, that do not have specific physical domains.
[ Back to Top ]
Department of Justice Subcommittee Hearing
The Subcommittee on the Constitution held a hearing in February, 2000, regarding The Applicability of the Americans with Disabilities Act (ADA) to Private Internet Sites. The purpose of the hearings was to "Address the potential opportunities and pitfalls, both economic and constitutional, of extending ADA coverage to the Internet, that, without the burden of accessibility regulations and threatened ADA litigation, already provides the disabled community with vast new opportunities to retrieve information amidst a dynamic and innovative technological environment."
Some of the arguments presented are summarized below (emphasis mine):
- Introduction: In light of the significant impact of the Internet on the economy, the potential costs that application of the ADA may impose on that rapidly expanding segment of the economy and the innovations it has encouraged, and the substantial first amendment implications of applying the ADA to private Internet Web sites and services, I believe it is appropriate for the Constitution Subcommittee to consider the impact of the ADA on the Internet.
-
I urge this Subcommittee to affirm the importance of access to this new world we're entering and to differentiate between the real world needs of blind people and the hypothetical and yet unproved burden placed on small businesses being required to ensure access. The effort required of the business community is minuscule when compared with the benefits to blind and disabled people and to the society in which we live. The cost of isolating the blind, the disabled, and the senior citizens of our nation is far too high, and the benefits to all of us will be immense if only we stay the course.
-
Anyone can experience conditions that impose limitations that mimic a disability, and be forced to rely on the same sorts of solutions that are required by many of the disabled population. It is estimated that one in five people will experience a disability at some point in their lives. These numbers are sure to increase as our population ages. Perhaps that puts accessibility into another perspective. The benefits of accessible web design extend beyond the community of people with disabilities. It eliminates the economic barriers to those who cannot afford expensive computers by enabling the use of inexpensive and less complex technology to access the Internet. For example, people who are cannot read can access the Internet by using screen readers that can convert text to voice and read out loud the content from accessible web pages.
-
The evolution of and the increase in the use of the Internet as a mechanism for employment, education, communication, and commerce require us to consider the technology barriers encountered by users of the incredibly important and empowering communication medium. Over 70% of people with disabilities who are willing and able to work are unemployed.
-
A recent Internet news story about accessibility showed that many Web developers have a negative reaction to the idea of accessible design. This is based on their belief that these standards will limit their creativity. Accessibility techniques are not designed to limit the creativity of designer. The creation of accessible Web pages will allow more people to experience their creations. Developing an accessible Web site does mean a developer must abandon artistic presentation or professional look. The artistic nature of the site will not be affected if the site is created with text-only pages first. Once the text version is created and tested for accessibility, the images and other artistic design features can be added. The site will then be accessible to most screen readers and text to voice translators. Many web sites that have won awards for their designs are also fully accessible.
-
Application of the ADA in its current form, without taking into consideration the progress made to date, could result in companies doing just what is necessary to comply to the law instead of furthering the advancement of technology. Many sites will focus on avoiding litigation instead of addressing the real need of disabled net citizens to have access to the valuable content they provide. The cost of potential litigation could prevent some web sites from coming online.
-
Industry must begin to understand why accessibility important to Web based companies. There are many sound business reasons why web site should care about accessibility. Providing accessible sites is a way to add tens of millions of potential customers, as well as their friends, their relatives, and their employers. According to Microsoft, studies show that each person with a disability has an average of five people who care about, them, and people tend to purchase software that works for the people they care about. I hope that we can all agree that an economic motive would work better rather than the threat of legal action based on a legislative initiative.
Results of discussion...
The Department of Justice concluded that the ADA does apply to companies and organizations offering products and services over the Internet. While they are not required to change the nature of their products, business entities must ensure access to these goods.
[ Back to Top ]
National Federation of the Blind v. AOL, Inc.
In 1999, the National Federation of the Blind along with nine individuals who are blind filed a class action for injunction and declaratory relief against America Online to require it, the nation's largest ISP, to bring its service into compliance with the Americans with Disabilities Act. The plaintiffs claimed the defendant specifically designed its AOL service so that it is incompatible with screen access software programs for the blind. They claimed AOL failed to remove communications barriers that prevent 50,000 NFB members (and thousands of others) from using the service.
The claims (see case transcript) centered around the following fact: "Among other things, AOL's proprietary software employs (a) unlabeled graphics, (b)commands that cannot be activated by using the keyboard but which instead can only be activated by using the mouse, and (c) custom controls painted on the screen. Indeed, what often appears to be text-such as the listing of channels-are in fact unlabeled graphics."
In the end, the two parties settled: AOL agreed to continue its efforts to ensure versions 6.0+ will be accessible to blind users, while NFB agreed to back down for at least a year before renewing its claims against AOL.
[ Back to Top ]
Other Legal Actions Related to the ADA
Maguire v. Sydney Organizing Committee for the Olympic Games: In 1999, Bruce Maguire filed a complaint with the Human Rights & Equal Opportunities Commission of Australia under a law called the Disability Discrimination Act (the Australian version of the ADA). The complaint concerned the official website of the Sydney Olympic Games, which he held was inaccessible to him as a blind person. One of the main sources of complaint was the fact that certain imagemap links to sporting event schedules lacked alt attributes, making them invisible to screen readers. To access the schedules, blind users were forced to type complex URL's, which constitutes discrimination according to the DDA. The Commission ordered the Olympic Games committee to fix its site by a certain date, but the committee ultimately refused, claiming it would be too costly, and payed Maguire damages.
American Airlines: Robert Gumson and a Florida-based disability rights group, Access Now, filed suit in 2002 against American Airlines under the ADA. American Airlines defended itself by claiming the ADA was not written to include the Internet since it had not yet made its way onto the radar screen; the ADA, it held, only applies to bricks-and-mortar facilities like movies, museums, and department stores. Access Now has also filed suits against Barnes and Noble.
Rendon v. Valleycrest Production: The 11th U.S. Circuit Court of Appeals decided in 2002 that "the definition of discrimination in Title III covers both tangible . . . and intangible barriers."
Implications for Universal Web Design
In summary, the American Disabilities Act has been declared multiple times to extend to businesses and other entities that offer services or products through channels such as the Web that do not have a tangible physical presence. The time and financial costs of building a web resource to be accessible are far outweighed by the benefit such efforts confer on the segment of the population with disabilities. Furthermore, accessibility techniques are not intended to limit creativity, but as technology progresses they will actually enhance creativity and extend the benefits of accessible design beyond the disabled community.
The unfortunate thing about the current legal situation is that many companies will respond to the call for accessibility by posting websites that focus on avoiding litigation instead of addressing the real need of their target audience in accessing the business's content.
As a result, it is imperative that large and small organizations become aware of not only the need for accessibility (whether imposed by law or social conscience) but also the techniques and technologies that would enable them to go one step further and actually provide content in a manner that all individuals can access. They simply cannot go on discriminating against members of the public by providing services that only those with "normal" characteristics can enjoy. It seems the three key factors that prevent entities from promoting accessibility are (a) perceived high costs, (b) fear of sacrificing visual creativity or appeal, and (c) ignorance of the issue. Thus, the purpose of this project is to address these three points.
[ Back to Top ]
Additional Resources
A Guide to Disability Rights Laws, ADA: An overview of the twelve major disability laws provided by the ADA government site.
ADA Transcript: Text version of the Americans with Disabilities Act.
Policies Relating to Web Accessibility: A brief listing of relevant legal issues surrounding the ADA, provided by the World Wide Web Consortium.
Hooks vs. OKBridge, Inc.: Text transcript of the legal brief.
Is your site ADA compliant? . . . Or a Lawsuit-in-waiting? A technical article provided by the International Center for Disability Resources on the Internet (ICDRI).
Subcommittee Hearing on ADA Application to the Web: Full transcript of the hearings, including all the arguments raised and conclusions drawn.
Follow-up thoughts on US ADA/Web Hearing: A posting by Judy Brewer, director of the W3C's Web Accessibility Initiative, regarding the hearing. Provides good insight to the behind-the-scenes thinking of the WAI.
Maguire v. SOCOG: A single individual in Australia took the Olympics to court in 1999 over their grossly inaccessible website -- and won.
NFB, Inc. v. AOL, Inc.: Transcript of the class action suit against America Online.
Suit Over Airlines' Web Sites Tests Bounds of ADA: Article about the case against American Airlines and the other legal turmoil over the application of ADA to the World Wide Web.
[ Back to Top ]
