Every lawyer is familiar with the Americans with Disabilities Act (ADA) – each of us covered it in law school in some way or another. The Act protects disabled individuals from discrimination in various areas of life, such as employment and accessibility to certain locations and particular extracurricular activities.
At this point in our legal history, a vast array of precedents have been set for the bounds of ADA protection. Historically, these bounds included physical alterations of particular locations open to the public – wheelchair ramps, accessible bathrooms, etc. Why is it then that our legal system has recently been bombarded with a surge of new ADA lawsuits? In an age where technology reigns supreme, plaintiffs are focusing their attention on the application of the ADA to the internet.
After nearly thirty years, many technological advances have been made since the 1990 Act was instituted. Present day, the world relies on the interconnectedness that internet access provides. Many of us shop, research various topics, make travel plans, socialize, and work online on a regular basis. The increased dependency on this resource has highlighted its accessibility issues for individuals with disabilities.
You have likely taken the time to make sure that your offices are ADA compliant – wheelchair access and accessible restrooms – thank you for that! Unfortunately, that is not enough anymore. For those of you with web pages, are your websites accessible? Are you familiar with what accessible means? If you are not sure, or if the answer is no, you may be vulnerable to an ADA lawsuit.
A Little Background
Accessibility has been traditionally thought of as physical barriers to accessing “places of public accommodation” – a term of art used in the ADA. However, physically disabled individuals are not the only types of disabled individuals affected by inaccessibility. Despite the well-known image of the blue man in the wheelchair on the handicapped parking spots, there are endless impairments that are not as obvious. The greatest difficulty with understanding the scope of disabilities is that the variety of applicable hindrances is indeterminable. From various degrees of visual and audible inability to limited mobility and cognitive impairments, it is impossible for any one person to truly understand the likely difficulties suffered by these individuals.
While both are considered disabled under the ADA, a person with legal blindness has different needs than a person that is completely blind. In this example, a completely blind person relies on specifically designed software, called accessibility technology or software, to read aloud the computer screen. When web pages or programs are not set up to work with this software, it prevents the individual from accessing the information. Well-designed websites can even add descriptions to photos embedded into the page to read to the individual what the image is and how it relates to the page’s overall content.
Legally blind individuals also use this software to accomplish tasks. In addition to screen reading functions, the programs can also provide zooming features for those with poor acuity. Go to the internet, hold the Ctrl button and press the + sign a few times; you will get an idea of the effects of this zooming function on the visual distortion of various web pages. Poorly designed pages distort the data in such a way that the user must swim around the page to see all of its content, or worse, certain features seem to disappear from the user’s screen.
For the hearing impaired, features like closed captioning are critical to accessing online information. The inability to read about the content in a video prevents individuals with hearing difficulties from fully benefiting from the material. The FCC has established rules requiring most televised programming to provide these services, however in the realm of internet access, such regulations are only recently coming to fruition.
Playing Hot-Potato with Website Accessibility Rules
Despite the need for clarity on the expectations of web accessibility, governmental branches seem to be avoiding the issue. The Obama administration emphasized creating rules for web accessibility under the ADA, but left the topic unaddressed before his term ended. The Trump administration has now placed the subject on the inactive list. The DOJ and Congress are tossing the burden back and forth, indicating that the other is better suited to establish a clear set of standards. Further, even though the DOJ has already considered a particular set of established and applicable internet accessibility guidelines, called WCAG 2.0, the agency continues to avoid putting it into action. No Executive or Legislative entity is taking action to establish rules to protect businesses from lawsuits, nor providing any rules on the standard for appropriate access to internet content for disabled individuals.
American Bar Association Action
The ABA has not been so apathetic about the concerns of internet accessibility for disabled individuals. In August, 2018, the ABA adopted Resolution 116C – a resolution proposed by the ABA Commission on Disability Rights that increases the scope of ADA protections in the virtual and technological world. The previous resolution was a simple statement that legal and governmental websites should be compatible with assistive technology, as to provide “meaningful access” to various disables users. The enriched version expands protection beyond the legal realm, into all areas. It also expands coverage to all technology, not just websites.
While the American Bar Association rules and resolutions are not authoritative per se, its direction provides guidance to state bar associations and legal professionals on how to approach particular topics and issues. The ABA has now spoken to the current climate regarding the scope of the Americans with Disabilities Act – and it is taking an aggressive position.
The most interesting feature of the new Resolution is its expansion into the non-legal realm. The recently adopted version urges the courts to apply the ADA to technology – a quite all-encompassing term that could include just about everything these days. With all of the gadgetry and technological devices currently available for use, the effect of this rule on the market is limitless. Beyond internet accessibility, will this rule force smart-technology manufacturers to alter the course of their products? Will all microwave, stove, and dishwasher manufacturers be required to add speech functions for the blind or flashing lights for the hard of hearing, or vibration functions for the deaf-blind? If they are “smart” appliances, it seems that this very well could apply. Will all remotes have to be altered to include braille or will they need to be shaped differently for those with mobile dexterity impairments? What will happen when the needs of one disability conflict with another – does one disability trump the other?
While the financial burden of change has impacted the resolution of ADA suits, it is likely that this consideration may be set aside for some time. Accessibility is expensive – particularly when it is an afterthought. Modifying a bathroom to be more accessible is one expense; making an appliance that provides features for all types of disabilities seems absolutely infeasible. Low vision, no vision, one arm, no arms, hard of hearing, completely deaf, epilepsy, the inability to speak, autism, Down’s Syndrome… The greatest hurdle will be making technology accessible to all of these users simultaneously. While a seemingly impossible task, we must start somewhere – and the time is now.
ADA guidelines for physical disabilities have become well-established since the ADA’s creation. However, it is not enough. Now, hidden disabilities and impairments are getting their days in court, too. As many quite high-profile defendants (Winn-Dixie, Hulu, Barbri, Harvard, Hooters, and ironically MIT, to name a few) are settling ADA lawsuits around the country, being proactive becomes critical for all businesses. Early action is not only good for avoiding an ADA suit and being an inclusive business, but it is also good for the bottom line. A potential client with a visual impairment will not waste their time trying to navigate an inaccessible website when there is an accessible alternative, possibly your competition. Recent data indicates that 12.8% of the U.S. population is disabled – that is an enormous group of individuals that inaccessible businesses are losing out on.
If you manage your own page, sites like WordPress have accessible layout options. If you opt for a web designer, select one familiar in web accessible coding. If you are just starting out and are starting a website for the first time, make your website accessible from the beginning. Retroactively making your site accessible is much more expensive than the investment of creating an accessible site. However, these options are all significantly less of a financial burden than the cost of litigation for your inaccessible source of information. Consider this: Would you rather wait to change when punitive damages are on the line, or would you rather take the initiative to get ahead of the inevitable?