This is post #6 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)
As discussed in the previous post in this series, section 42 U.S.C. § 12182 (b) of the ADA is broken down into two sub-sections. The first sub-section is a series of general prohibitions under the ADA. What follows is a summary of the core requirements in this section that we’ve seen relate to digital accessibility. For this section and the next I will start mixing in references both to the statute (law) and implementing regulations. The latter give us more color commentary on what each requirement means.
|Requirement||Law||Regulation||What it means|
|Denial of participation||42 U.S.C. § 12182 (b) (1)(A)(i)||28 CFR 36.202 (a)||You can’t deny people with disabilities the right to use the good or services of your public accommodation. An example of this cited in the 1991 preamble is when a restaurant refuses service to a person with disabilities. You can’t do that – it’s discrimination. A digital equivalent of that: the same restaurant provides a menu in an inaccessible PDF. The PDF document can’t be used by someone that is blind and that denies the person that is blind access to the good and services provided at that place of public accommodation.|
|Participation in unequal benefit||42 U.S.C. § 12182 (b) (1)(A)(ii)||28 CFR 36.202 (b)||You can’t provide a method of participating to individuals with disabilities that is fundamentally unequal to that provided to others. For example, you can’t provide people with disabilities a sub-standard experience relative to other users.|
|Separate benefit||42 U.S.C. § 12182 (b) (1)(A)(iii)||28 CFR 36.202 (c)||You can’t provide an alternate method of accessing or using whatever is being provided unless it is necessary to provide an alternate, equivalent method. This and the requirement for integrated settings are meant to be interpreted in conjunction.|
|Integrated settings||42 U.S.C. § 12182 (b) (1)(B)||28 CFR 36.203||Accessibility must be provided in a fashion that is integrated with the overall good and services provided at the place of public accommodation. This doesn’t preclude providing experiences that are custom tailored to people with disabilities. It precludes making those experiences the only method by which people with disabilities can interact with the goods and services. Understanding this requirement is critical to understanding why specific things like widgets and overlays aren’t valid forms of ADA compliance so we discuss it in more depth below.|
|Administrative methods||42 U.S.C. § 12182 (b) (1) (D)||28 CFR 36.204||You can’t limit access to people with disabilities via criteria you impose, through some contractual obligation or some other administrative approach. This is essentially limiting discrimination via some more subtle administrative approach or control. As a digital example, if you can’t sign up for a service provided by a covered entity, because the registration path was inaccessible, that may be discrimination under this component of the statute.|
As part of discussing the concept of Integrated Settings for digital environments let’s start off with a few quotes discussing the issues from the preamble to the original Title III regulations released by the Department of Justice as it relates to the topic of integrated settings:
“The ADA recognizes that the provision of goods and services in an integrated manner is a fundamental tenet of nondiscrimination on the basis of disability. Providing segregated accommodations and services relegates persons with disabilities to the status of second-class citizens. For example, it would be a violation of this provision to require persons with mental disabilities to eat in the back room of a restaurant or to refuse to allow a person with a disability the full use of a health spa because of stereotypes about the person’s ability to participate.”
“Sections 36.203 (b) and (c) make clear that individuals with disabilities cannot be denied the opportunity to participate in programs that are not separate or different. This is an important and overarching principle of the Americans with Disabilities Act. Separate, special, or different programs that are designed to provide a benefit to persons with disabilities cannot be used to restrict the participation of persons with disabilities in general, integrated activities.”
“For example, a person who is blind may wish to decline participating in a special museum tour that allows persons to touch sculptures in an exhibit and instead tour the exhibit at his or her own pace with the museum’s recorded tour. It is not the intent of this section to require the person who is blind to avail himself or herself of the special tour. Modified participation for persons with disabilities must be a choice, not a requirement.”
“Further, it would not be a violation of this section for an establishment to offer recreational programs specially designed for children with mobility impairments in those limited circumstances. However, it would be a violation of this section if the entity then excluded these children from other recreational services made available to nondisabled children, or required children with disabilities to attend only designated programs.”
A critical goal of the ADA is to ensure the integration of people with disabilities into society. To the fullest extent possible, the support for the equal access needs for people with disabilities is meant to be provided as part of the core experience of the goods and services. It is not meant to be provided in a separate program. In fact, providing it as a separate program is defined as discrimination under the ADA. That’s the core concept of “separate but equal” that the framers of the ADA were at pains to ensure was barred as a route for providing “accessible” solutions unless necessary to provide that accessibility. Summing that up with a quote from the above: “Separate, special, or different programs that are designed to provide a benefit to persons with disabilities cannot be used to restrict the participation of persons with disabilities in general, integrated activities.”
That’s the critical point here with widgets and other add-on solutions to websites apart from their technical shortcomings. They fundamentally are separate from, and not integrated with, the experience of the site. They provide a separate and unequal experience for people with disabilities. They do not provide an integrated, accessible experience. An integrated, accessible experience is provided by making the primary site accessible, and that is also a key and fundamental requirement of the ADA.
We’d go further: In our view deploying a widget violates the ADA in that it directly acts in a way that the ADA describes as discrimination. Just to refresh everyone here’s what the ADA says about the matter (42 U.S.C. § 12182 (b) (1)(B)):
It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.
There is a little bit of daylight there in that you could argue that deploying the widget is “necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.” The obvious problem with that is they are not “necessary” to provide the functionality. Directly providing accessibility via the site itself is a well proven, and integrated, route to providing accessibility. It is not necessary to provide it in any other fashion.
Given that we are left with the inescapable view that widgets are, in fact, discriminatory in nature and deploying them constitutes a clear violation of the ADA.