Americans with Disabilities Act: Accessibility in Online Operations

Overview

By now, most General Counsel are knowledgeable about Americans With Disabilities Act (ADA) issues for employees. When Title II or III issues arise, they are usually in the context of construction issues, such as removing physical barriers. Concerns about operations and communications get scant attention until there is an investigation or lawsuit. Website problems are referred to the IT department. This is a mistake.

Private and public goods and services are increasingly provided without the need to enter a building. Federal agencies, including the Department of Justice (DOJ), the Department of Education, and disability rights advocates, have concluded that the ADA and other disability rights laws require that businesses selling to the public , and programs and services offered by federal, state and local governments, must be accessible to and usable by persons with disabilities no matter where and how they are delivered. Ensuring effective communications in all operations and services is not something that can simply be handed over to IT. It requires thinking about the delivery of programs and services in new ways, anticipating issues, developing solutions and training personnel before a request is made or a complaint filed.

What Operations and Entities May Be Covered

When the ADA was passed in 1990 the Internet, as we know it, did not exist. That has not prevented the enforcement agencies, advocates and the courts from seeking to apply the ADA and other disability rights laws to new technologies. From a 2006 lawsuit against Target to a 2012 case against Netflix, claims are on the rise and were recently profiled in a Wall Street Journal article.

In July 26, 2010, DOJ issued an Advance Notice of Proposed Rulemaking, "Nondiscrimination on the Basis of Disability: Accessibility of Web Information and services of State and Local Government Entities and Public Accommodations" (ANPRM). Comments closed in January 2011. It was reported earlier in 2013 that DOJ planned to issue proposed regulations before the end of 2013.

• DOJ declared in the ANPRM that there was "no doubt" that websites of state and local governments are already covered under ADA Title II, which reaches all services, programs or activities provided by or made available by public entities. DOJ also concluded there was "little debate" that websites of all recipients of federal financial assistance are covered under Section 504 of the Rehabilitation Act of 1973. Similar positions have been taken by the Department of Education (e.g. http://www.ed.gov/news/press-releases/civil-rights-agreement-reached-south-carolina-technical-college-system-accessibi) and the Department of Health & Human Services. The extent of the current obligations are not always obvious. For example, an official tourism website run by a Convention and Visitors Bureau, funded in whole or in part by a local government, could be covered under both ADA Title II and Section 504.

Many private entities that receive no federal funds are covered under the non-discrimination requirements of ADA Title III if they own, lease or operate a place "public accommodation". There is joint and several liability for landlords and tenants. The 12 categories include places of lodging, exhibition, recreation, entertainment, exercise, education, lodging, or public display; social services (e.g. day care, adoption); all "sales or rental establishments" and all "service establishments" (e.g. accountants or lawyers, health care providers, travel services, insurance offices, pharmacies).

DOJ has long taken the position that the ADA is not limited to "places" and that the websites of private entities that own, lease or operate brick and mortar places of public accommodation must be accessible. DOJ has included requirements for web accessibility in many recent settlements and consent decrees (e.g. QuikTrip and Hilton). DOJ has also asserted in court briefs that internet-only businesses are covered by the ADA. The handful of federal court decisions are mixed, with a 2012 decision on a preliminary motion going against Netflix. In the ANPRM DOJ said it:

• Did not intend to cover personal, noncommercial use (e.g. social networks) or informal or occasional trading, selling or bartering by private individuals. Does intend to regulate businesses that provide goods and services directly or through the websites of others and are "public accommodations." This would include online-only businesses, and could reach online operations that are strictly business to business. Given the expansive definitions of what is a "public accommodation", almost any good or service that a business wants to sell on or through the web could potentially be covered under new DOJ regulations.

Accommodations and Effective Communication

The scope of individuals potentially protected by the ADA expanded dramatically under the ADA Amendments Act of 2008. The ADA and other disability rights laws impose affirmative obligations to provide "reasonable accommodations", such as modification of policies, procedures and practices and "auxiliary aid and services" needed for effective communication (e.g. qualified interpreters for people with hearing impairments). There is a wide range of accommodations that may be needed by people with hearing, vision, speech, cognitive and other disabilities. DOJs 2010 expanded the types of services that may be necessary in its 2010 regulations.

The need to provide accommodations and effective communication has never been limited to brick and mortar facilities. In the early 1990s, many covered entities that offered telephone sales or customer service call centers had to adapt to taking calls through telephone relay services for the deaf, or would receive requests to provide such services in a different way.

Website accessibility is just a different set of issues. As DOJ explained:

• Individuals who are blind may use a screen reader to convert to speech.
• Individuals with low vision may have difficulty with fonts or color contrast Individuals with physical impairments made need to use speech recognition to navigate the Web or keyboard alternatives to mouse controls.
• Individuals who are deaf cannot access information in videos or speech that is not captioned.
• Individuals with various disabilities may have difficulty with websites that "time out" or require difficult to read passwords.
• Many websites fail to incorporate or activate features that enable users with disabilities to access all of the sites information or elements. On-line forms can be a particular challenge.

Compliance issues arise not just with "websites" themselves, but with goods or services being delivered over the Web. Federal agencies are already investigating compliance of colleges and universities with on-line course offerings. Issues that arise with just this one example of web-based "services" (training or education) include how students with disabilities learn of their rights; accessibility of the website; how to make lectures, graphics, etc. accessible on-line to students with various disabilities; accessibility of communications with faculty and between students; and accommodations in on-line testing. Similar issues could arise with any sales or services provided on-line.

While many of these issues can be addressed through programming that is invisible to the user, solving other problems involves content and design and can affect the appearance of websites. This is not just an issue for IT. You need to determine where content is being created, and require all content creators to address accessibility requirements. In many larger agencies, institutions and businesses there may be multiple parties creating and posting content without prior central review by IT, such as individuals creating and posting on-line training or courses or posting responses to customers.

Web Accessibility Standards

Further complicating the work of the General Counsel is that there are no clear standards. The federal government is covered under Section 508 of the Rehabilitation Act, and there are standards for accessibility that apply to federal government websites and to technology purchased by federal agencies. The U.S. Access Board has published Section 508 Standards, but has been working on a Refresh for several years. The Web Accessibility Initiative of the World Wide Web Consortium has created voluntary Web Content Accessibility Guidelines (WCAG) that have been widely adopted. The second generation, WCAG 2.0, has design principles of Web accessibility, guidelines, and three levels of testable "success criteria", Levels A, AA and AAA.

In the ANPRM, DOJ asked whether it should adopt WCAG 2.0 Level AA, Section 508 Standards or some other standard; how to address changes over time in those standards; or whether to dispense with trying to set any technical standards and instead adopt more flexible performance standards. In the absence of regulations, federal agency investigators have accepted compliance with both WCAG 2.0 Level AA and Section 508 as sufficient. Many IT departments and outside web designers lack sufficient experience with these standards, forcing many businesses and institutions to turn to outside experts. Some also partner with disability rights advocates to ensure that the results actually work for the ultimate customer.

Trying to meet these requirements can generate internal resistance. Sometimes it is less expensive, and on occasion necessary, to take out some of the bells and whistles. This often leads to objections, especially from merchandising and marketing. When pressed whether the changes are legally required, the absence of clear, final, enforceable regulations from DOJ can lead to a decision to table or limit the project.

Making websites and on-line content accessible is not a one-time project. There needs to be:

• Ongoing training of those developing content.
• Periodic testing Policies, procedures and training to capture and promptly address requests for accommodations that are not solved by Web design alone.

Conclusion

This issue is not going away. All governmental entities and most other businesses with a web presence are going to eventually have to address these issues. Waiting until DOJ rules are final only leaves you open for challenge and your customers with disabilities frustrated.

Additional Resources

• Part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services (U.S. DOJ 2010) Part 36, Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities (U.S. DOJ 2010) Accessibility of State and Local Government Websites to People with Disabilities (U.S. DOJ) Section508.gov, Opening Door to IT, Resources for understanding and implementing Section 508 (U.S. GSA ) Electronic and Information Technology Accessibility Standards ( U.S. Access Board) Designing More Useable Websites (Trace Research and Development Center, University of Wisconsin) Creating Accessible Websites (American Federation for the Blind) NFB Nonvisual Accessibility Web Certification (National Federation of the Blind) How to Make Presentations Accessible to All (W3C Web Accessibility Initiative)