ADA

ADA

The Americans with Disabilities Act

The Americans with Disabilities Act of 1990 was created as a body of protective laws for people with disabilities to ensure that they would not, through lack of thought or foresight, be excluded from participating in the ordinary business of living in our shared society.

This set of laws is not so comprehensive as to include every potential situation, as that is quite difficult partly because of the various definitions of disability, and partly because even the most thorough research cannot cover every contingency. However, it does continually seek to bring all disabled people as much as possible under the protective umbrella of the law.

Because many businesses will simply offer what they are required to and no more, and because many business owners might not consider accessibility enough of a priority to trigger expenditure, laws such as these were put into place. These laws were designed to safeguard disabled individuals from discrimination while simultaneously guaranteeing them comparable opportunities to abled persons, in the public sector and in many areas of the private sector.

General Public Perception Vs. What’s Needed

Most people are doubtless familiar with the parts of the ADA that relate to physical access, such as the need for wheelchair ramps at business entrances, or smooth crosswalk transitions from sidewalk to street, or convenient (and coveted) parking spots in busy areas.

The law also encompasses many common aspects of life that may remain unnoticed by the members of the public for whom they do not present personal challenges.

Online, the ADA requires government and business websites to present fully accessible alternative reading options for people with disabilities. As a physical door must be accessible to all and afford entry to all, so too must access to necessary services online be available to all. When managing personal dealings and important errands online, as for example renewing a driver’s license at the DMV, or purchasing products in an online shop, necessary website access must be open to all. The law strives to empower everyone in society to participate in our daily digital spaces as well as in physical spaces.

Not everyone understands the importance of accessibility in digital spaces. Most often, that comes from a perspective of simply never having been denied access by default.

The ADA’s Influence On Web Accessibility

The first website went live on August 6, 1991. It was, perhaps unsurprisingly, concerned with itself, with instructions on how to use the newborn World Wide Web. Containing how-to details for creating web pages and self-teaching hypertext (early code with a link to text or images online), it could fairly be said that its founding intention was to create shared and shareable accessibility to information.

When the ADA was enacted, there were no websites online. It was 1990.

With that timing in mind, it’s easy to understand why the language and examples in the ADA relate to and describe physical spaces, not digital ones.

In the years since the enactment of the ADA, this focus on physical space has led to a fair amount of confusion as to whether or not the law covers the digital world, and if so, how much, and in what ways. Congress has not made any updates or amendments to the ADA itself, but the US Department of Justice (DOJ), as well as federal district and circuit courts, has stepped in and interpreted the law more inclusively.

Due to this general lack of clarity with regard to ADA requirements online, many businesses and government agencies have been found liable when their websites were not accessible to people with disabilities.

ADA Titles II and III: “.gov and .com”

We’ll describe Title sections of the ADA shortly, but it may be helpful for you to have this brief bit of information ready before reading on to the Three Cases section just below, especially if you intend to dig into the links.

Title II prevents local, state and federal agencies from excluding people with disabilities from their services, or segregating them from everyone else. Based on this thorough language, and on section 504 of the Rehabilitation Act of 1973 (which prevents government agencies from discriminating), there hasn’t been much pushback against requirements for adopting web accessibility standards across government websites.

Title III is aimed at private business, and focuses on “places of public accommodation.” This term relates to public spaces within and around businesses, such as the seating area in a restaurant. The language in the ADA about places of public accommodation only specifies building design, but that doesn’t mean business websites automatically get off easy on web accessibility requirements.

In any case, you may find it a useful mental shortcut to think of Title II as the .gov side of the web, and Title III as the parallel .com, although of course that’s an oversimplification.

Three Cases for Online Access: Nexus and Responsibility

These three cases clarify how the DOJ and other bodies of justice connect the ADA to website accessibility. Read through below, or skim if you like. A brief description of each case and its importance follows.

National Federation of Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006)

The National Federation of the Blind filed this case because the Target.com website was not accessible for screen readers. In the court documents, it noted that the images on the site did not have alt-text descriptions, nor did the navigation menu. These, and other issues, made the site impossible to use for people with impaired vision with screen readers.

Target claimed that Title III of the ADA only related to physical spaces, so its website did not fall within the law. However, the district court found Target’s website was "heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores." The court then went on to provide examples, such as how prescription refills could be made online for store pick-up, as well as how online orders for photos could be collected in the store.

This case and similar ones are based on a “nexus” interpretation of the ADA. A nexus is a connection between two or more things.

With regard to Target.com, the website is not a separate part of the store experience, and it never was. Rather, it is blended with it. Application of this nexus theory has resulted in a robust body of case law that asserts that businesses with physical stores should be required to have accessible websites.

Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870 (N.D. Ohio 2018)

Rebecca Castillo, a visually impaired person who relies on a JAWS screen reader to independently navigate the internet, filed a claim against Jo–Ann Stores, colloquially known as Joann’s, which sells fabrics and other craft supplies. Castillo was not able to access the Jo–Ann website because it was not compatible with her screen reader, which is one of the most popular screen readers in the world.

Once again, in this case, the business argued that the ADA does not apply to websites, only to physical spaces. Jo–Ann claimed there was nothing that prevented Castillo from visiting a brick-and-mortar store to buy its products. Castillo countered that the website contains information about store locations, hours, sales and contact information, but she couldn’t access any of it because the site didn’t work with her screen reader.

The court found that the Jo–Ann website can be considered a place of public accommodation based on a nexus interpretation of the law.

The most significant part of this case relates to the fact that Castillo did not explicitly seek to enforce a specific set of technical website standards. The only request was to have the court rule that it must be remediated. Since the ADA does not contain technical standards for website accessibility, this placed the responsibility of how to actually make the site accessible squarely on the corporate shoulders of Jo-Ann Stores.

Robles v. Domino's Pizza, LLC, 913 F.3d 898 (9th Cir. 2019)

Guillermo Robles filed a claim against Domino’s Pizza because its website and app were not accessible with a screen reader. Specifically, it was not possible for him to place an order online using an assistive device. Robles also asserted that Domino’s website should meet WCAG 2.0 AA, which is a set of technical accessibility guidelines created by the World Wide Web Consortium (W3C).

A significant portion of Domino’s defense focused on “fair notice.” It stated that since Congress and the DOJ have never adopted a set of guidelines like WCAG, there was no way for Domino’s to specifically know what was required to make its website accessible. The court saw the issue differently.

In its response, the court stated “[w]hile we understand why Domino's wants DOJ to issue specific guidelines for website and app accessibility, the Constitution only requires that Domino's receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations”.

Accessibility Rights For Everyone

Have you been wondering why ADA requirements are not being applied only with regard to physical spaces? Was that not the original intent of the law? Web access wasn’t even mentioned in the original language.

No. Of course it was not. The internet didn’t yet exist. How could we expect the world wide web to be verbally described and specifically included?

The law, however, was designed to protect the right to access to services, and it has never been clearer that internet access is no longer a luxury, it’s a part of our lives, and, inevitably, of our ability to connect with the world.

Again, the original intent of the law was full access, full stop.

The DOJ and federal courts don’t envision accessibility as “only” a disability rights issue. They understand it as a civil rights issue. The ADA was enacted by Congress to ensure people with disabilities are treated equally to everyone else in society. A lot of the language within the ADA also includes terms like “discrimination,” “integration” and “segregation.” It’s no coincidence that these words are part and parcel of the civil rights movement.

Let’s take a brief dip into the five sections of the ADA so you can get a better picture of the law’s intent.

Title I: Employment Law

Title I of the ADA prevents employers, state and local governments, and unions from discriminating against people with disabilities “in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment” [1]. It also applies to all organizations with 15 or more employees, including employment agencies.

Few court cases have been filed related to website accessibility and employment issues. However, since more businesses are beginning to hire remote workers, an increase is likely due to the number of cases being filed related to Title III.

Title II: Public Services, State and Local Government

Title II applies to state and local government entities, as well as public transportation. It was designed to ensure that people with disabilities are not excluded from public and government services or programs.

One of the most important parts of Title II is the “integration mandate,” which prevents local and state governments from segregating people with disabilities from everyone else. This is an extension of “the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, to all activities of state and local governments regardless of whether these entities receive Federal financial assistance” [2].

Title III: Public Accommodations and Services Operated by Private Entities

Title III is directed at privately-run organizations. It requires that any spaces within privately-run organizations which are used for public services must be accessible to people with disabilities.

This includes “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” [3]. It also includes commercial facilities, such as office buildings, factories and warehouses. All of these organizations must provide access to their services for people with disabilities.

While the most noticeable result from this section of the ADA is that all buildings must be designed to be accessible for everyone, it has also proved to be a catalyst for accessible websites, even though it does not contain language or technical guidelines for web accessibility.

And just as in the Domino’s case mentioned above, many businesses are struggling to determine how to make their websites accessible and what level of accessibility is enough. A major part of the challenge comes from there being so many different types of disabilities. That’s why UserWay focuses on allowing individuals to select what accommodations they need rather than forcing them to choose their disabilities. OurAI-Powered Accessibility Widget also works in the background to edit the code on your website, so navigation is possible with just a keyboard or other assistive device instead of a mouse. No easier way exists to make a website accessible.

Title IV: Telecommunications

Title IV targets telephone and television access for people with hearing and speech disabilities. It requires telephone companies to establish interstate and intrastate telecommunications relay services (TRS). TRS allows callers with hearing and speech disabilities who use teletypewriters (TTYs) to communicate with people making voice calls. Title IV also requires closed captioning of federally-funded public service announcements.

Title V: Miscellaneous Provisions

Title V includes miscellaneous provisions that cover the entire ADA. But most importantly, it prohibits retaliation against individuals who enforce their rights under the Americans with Disabilities Act.

Accessibility as Standard: ADA and More

For many years, people with disabilities were frequently discriminated against when it came to employment, housing, schooling and many other functions in society. There were no standards at the federal level that guaranteed them equal access, and so, generally, they simply didn’t and couldn’t get equal access, or equal treatment. Often, disabled people were placed in institutions and permanently separated from their families.

Prejudice hasn’t gone anywhere. But the law has moved forward, at least in this direction.

A movement for disability rights grew at about the same time as the civil rights movement in the USA. But it wasn’t until 1981 that a National Council on Disability was formed at the US federal level. This group created a policy proposal that was the foundation of the ADA. Nine years later, the ADA was enacted. Long enough in the making, and as with most sets of laws, its real-life interpretations are more than the sum of its parts.

As noted above, Congress has to date not passed an amendment of the ADA that directly and specifically addresses websites, or contains technical standards for organizations to follow. Therefore, guidelines are provided and updated by independent bodies. Courts tend to accept the standards set by these bodies, making their requirements something very close to de facto law. Requirements ignored are likely to block access, and incur the just wrath of users.

In the United States, the best framework currently available to use is the Web Content Accessibility Guidelines (WCAG). Across the globe, other government and independent accessibility organizations have created standards of their own. The intent, as with the ADA’s foundational ethic, is clear: accessibility for all.

The AI-Powered UserWay Accessibility Widget is the easiest way to bring your website into full compliance not only with the ADA, but across all standards, including WCAG.

It also ensures any new content you add is compliant as well. Making your website standards-compliant will help boost your bottom line, but at its core, it’s about making sure that the doors of your website are open to all. Fundamentally, it’s the right thing to do. Because everyone should have equal access to the internet.

To learn more about how the UserWay Accessibility Widget complies with ADA regulations, please get in touch. And if you can’t wait to get started using the widget, click the link below to begin a free trial.

[1] https://www.ada.gov/ada_title_I.htm
[2] https://www.ada.gov/ada_title_II.htm
[3] https://www.ada.gov/ada_title_III.htm