online communications

ADA Compliance: Effective Communication

Written by: Timothy Stephen Springer

This is post #10 in the ADA Compliance Series, which aims to outline a structure for validating and justifying a claim of “ADA compliance” for a website or other digital system. (a few notes and disclaimers on that)

There is no direct definition of effective communication in either the general definitions of the ADA or the specific definitions relevant to Title III.

As an interesting side note: the ADA does not include a concept of effective communication. This concept was introduced by the Department of Justice (DoJ) as part of the 1991 rule-making process. As part of that process, the DoJ took the concept of effective communication from the regulations implementing Section 504 of the Rehabilitation Act.

“To give emphasis to this underlying obligation, Sec.36.303(c) of the rule incorporates language derived from section 504 regulations for federally conducted programs (see e.g., 28 CFR 39.160(a)) that requires that appropriate auxiliary aids and services be furnished to ensure that communication with persons with disabilities is as effective as communication with others. 1991 Preamble – Section 36.303 Auxiliary Aids and Services

So, there isn’t a definition of effective communication other than that the communication is, “as effective as communication with others.” That actually provides some relief in the area of digital accessibility as it puts on a firmer footing the idea that the communication medium should broadly be as “effective” for all parties. If a website—or another digital medium—is generally provided at the same level of efficacy for all parties then that would be reasonably deemed as “effective”. That sounds like a minor point, but it helps to get us out of the argument of, “the website must be perfectly WCAG compliant to be accessible.” Prima facie anyone that even knows a little bit about digital accessibility would take that statement as absurd. A test of equal effectiveness gives us a more reasonable and moderate definition to work with.

At this point it’s helpful to revisit the regulatory record (28 CFR 36.303 (a)) as it speaks directly to effective communication:

“A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.”

So we can reasonably conclude that effective communication via auxiliary aids and services requires parity of experience for people with disabilities—that people with disabilities are not, “treated differently than other individuals”—when those auxiliary aids and services are present. Broadly that aligns with the DoJ’s published view on effective communication which can be summed up as, “The goal is to ensure that communication with people with these disabilities is equally effective as communication with people without disabilities.” And similarly, “The purpose of the effective communication rules is to ensure that the person with a vision, hearing, or speech disability can communicate with, receive information from, and convey information to, the covered entity.”

On a technical level that aligns well with the intent of the WCAG 2.0, which is, “to make web content more accessible to people with disabilities.” So, choosing WCAG 2.0—or more commonly now 2.1—as the accessible format we choose to conform to for relevant content feels in line with the intent and spirit of both the laws and regulations. More on all of that in my next post.