About the ADA
The Americans with Disabilities Act 1990 (ADA) gives civil rights protection to individuals with disabilities similar to that provided to individuals on the basis of race, color, sex, national origin, age and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services and telecommunications. To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. The ADA defines a disabled individual as a person who has a physical or mental impairment that limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such impairment.
The Department of Justice’s (DOJ) policy on website accessibility states that the ADA applies to state and local governments and covered business entities whenever they correspond via the internet. Title II of the ADA encompasses the activities of state and local governments regardless of the size of the government entity or receipt of Federal funds. Therefore, state and local governments must give people with disabilities an equal opportunity to benefit from all programs, services and activities.
Title III of the ADA addresses businesses and non-profit service providers that are places of public accommodation, privately operated entities offering certain types of courses and examinations, privately operated transportation and commercial facilities. As a result, the effective communication rule applies to these entities that use the internet as a means of communication for their goods, services or programs because they must be prepared to present these communications through an accessible medium.
- In 1999, the National Federation of the Blind brought litigation against America Online (AOL) because its website was inaccessible to the blind. A settlement reached by the parties required AOL to change its website going forward so that it would be compatible with screen reader assistive technology.
- In 2002, Access Now, Inc. filed a lawsuit against Southwest Airlines claiming that its website was inaccessible to the blind. The district court granted Southwest’s motion to dismiss on the grounds that its website was not a “place of public accommodation.”
- In August 2004, Priceline.com and Ramada.com agreed to implement a variety of accessibility standards that will enable users of assistive technology to navigate these sites. Investigations conducted by the New York Attorney General’s Office in 2003 found that parts of these websites were not accessible to screen reader software. Screen reader software is a type of assistive technology that converts text into speech and reads pages on display. Consequently, an agreement was reached whereby these companies will implement a range of accessibility standards authored by the Web Accessibility Initiative (WAI) of the W3C.
- In Martin v. Metropolitan Atlanta Rapid Transit Authority (MARTA) No. 1:01-CV-3255-TWT, MARTA was sued under Title II of the ADA. The list of complaints included the lack of scheduling and route information available in alternative formats. MARTA had a website with this information and a policy to make it available by telephone or in Braille if requested. However, the plaintiffs argued that the website was inaccessible and the alternative formats policy often not implemented. The court issued a preliminary injunction in October 2002. The judge ruled that MARTA violated the ADA by not making effective Braille, phone, and web information available. He did not say that the inaccessible website was a violation, but rather that the denial of access to the information was a violation of the ADA. He ordered the parties to agree on appropriate remedies.
- The Americans with Disabilities Act received a key update in 2012 when the United States District Court of Massachusetts ruled that a website can be a public accommodation. On June 19th, the district court issued a Memorandum and Order Regarding Motion for Judgment on the Pleadings in the matter of the National Association of the Deaf, et al. (NAD), versus Netflix Inc. The plaintiffs brought action under Title III of the Americans with Disabilities Act (ADA) against Netflix for Netflix’s “failure to provide equal access to its video streaming web site, ‘Watch Instantly,’ for deaf and hearing impaired individuals.” The court’s ruling upheld that the site was a place of public accommodation as defined in the ADA.
Cases and Settlements
In recent years, the number of lawsuits for digital accessibility increased dramatically. The vast majority of cases do not go to trial and are settled under structured negotiations. In the case of class action suits these negotiations can occur before or after certification of the class.
The exact requirements for compliance vary from case to case but most recent case settlements require conformance to WCAG 2.0 A success criteria, as well as best efforts to achieve AA success criteria conformance. This set of requirements is more restrictive than what most organizations choose to conform to if they address accessibility in a proactive fashion. So, in addition to the legal and settlement costs, organizations face a higher burden of compliance by reacting to suits versus proactively defining a level of compliance.