This is post #19 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 previous blog posts in this series, there is no direct definition of effective communication in either the statute or implementing regulations (28 CFR § 36.103 (c)). The concept of effective communication isn’t actually part of the ADA, it’s borrowed from a similar law—the Rehabilitation Act of 1973. Given the lack of a base definition, we can go to the dictionary and then mix and match it with the regulatory direction. The dictionary defines communication as, “the imparting or exchanging of information.” It defines effective as, “successful in producing a desired or intended result.” So, if you stick those together you get something like, “Imparting or exchanging information in a way that produces a desired or intended result.” The regulation also requires parity of experience for people with disabilities and people without disabilities. If you tack that on to the end, you get something like, “Imparting or exchanging information in a way that produces a desired or intended result which has parity with a similar experience provided to individuals without disabilities.” Which is tough to say, let alone type. The Department of Justice’s (DoJ) ADA Requirements note on the topic of Effective Communication says it more concisely:
“The goal is to ensure that communication with people with these disabilities is equally effective as communication with people without disabilities.“
“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.”
Test 1: Does it work for a person with a disability?
The first test, then, is a test of the parity of the efficacy of the communication provided. Basically, we think of that this way:
- What is the communication, feature, or function intended to do?
- Does it accomplish that for a person with disabilities?
- Is the experience of that for a person with disabilities equal to that of a person without disabilities?
The final point can and should take into account any reasonable implications of the person’s disability or technology they use in the context of the communication medium provided. That noted, proceed with extreme caution on this front. Any judgments about the functional limitations of a person with disabilities—or a class of people—are often poorly informed and based on stereotypes. Our read is that the law and implementing regulations take an exceptionally dim view of stereotype-based decisions. Fact-based decisions that you come to in consultation with people with disabilities, on the other hand, are fully in line with the letter and spirit of both the statute and regulation.
You’ll also note this requirement is exactly the same as the second requirement we use to test “full and equal access.” That doesn’t indicate we have to test it twice—just reinforces that requirement.
Tests 2 through 5: Does it match the medium?
In addition, to the general utility test, we also have clear guidance on the type of auxiliary aids or services that are valid under the ADA:
“The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.”
Taking that in parts:
- The method of communication online is through the browser, text-driven and asynchronous. Synchronous communication channels (such as the phone, voice, or video) and those through apps are occasionally used but that tends to be the exception, not the rule.
- The nature, length, and complexity of the communication tend to be immediate, simple, short, and self-service. The nature of the medium (the web) is that it drives self-service in a clear, immediate fashion. We’d argue that digital accessibility—in the lens of the ADA—is about parity of that experience for people with disabilities. You’d be hard-pressed to argue that an alternate medium, such as the phone, would provide parity of that experience.
- The context in which the communication is taking place is a 24 hours a day, seven days a week global, digital pervasive medium. That’s the nature of the Internet and how people with disabilities would reasonably expect to communicate with web sites.
We test the above with a few simple requirements:
- Appropriate for the Medium: Is the method of communication broad similar in terms of text versus non-text options for communication?
- Self-Service: Is it largely self-service in nature?
- Real-Time: Is it real-time in nature?
- Availability: Is it available 24 hours a day, seven days a week?
In addition, there are a few different items that the regulations either recommend or require as it pertains to effective communication:
Test 6: Did you arrive upon it in consultation with individuals with disabilities?
“A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.”
“In its analysis of the ADA’s auxiliary aids requirement for public accommodations, the House Education and Labor Committee stated that it “expects” that “public accommodation(s) will consult with the individual with a disability before providing a particular auxiliary aid or service.” (Education and Labor report at 107)
We strongly recommend that clients both be able to show that they have consulted with people with disabilities throughout the process of developing their technology solutions. Engaging people with disabilities goes a long way to ensuring a fair and equal experience and ensures that simple solutions for otherwise complex problems aren’t missed. It also aligns with an item that is strongly recommended under the statute.
This is one of the key services we provide at Level Access and consul our clients to insert into their development processes. That approach requires people with disabilities to be meaningfully involved in the design process to ensure the right “accessibility features in electronic documents and other electronic and information technology” are used to ensure the resulting communication is effective for people with disabilities.
Such consultation, however, does not give the person or group of people being consulted the right to dictate the approach. In particular, we’d take the view that plaintiffs and plaintiff’s attorneys don’t have the right to dictate the set of features that need to be accessible or the approach to making things accessible—that right lies squarely with the covered entity. To that end, we’d agree with courts that say WCAG conformance—effectively a set of accessibility features in this context—cannot be used to dictate conformance with the ADA. WCAG can, however, serve as a remedy, but that remedy can’t be proactively prescribed outside of a due regulatory process promulgated by the U.S DoJ.
“In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.”
Test 7: Is it provided in an accessible format in a timely manner?
In “accessible formats” for the purpose of this discussion can be read as technical conformance to the WCAG or other common standard that meets the bar of effective communication as defined above. This is the one test where we, Level Access, are taking a bit more liberty with the statute and regulatory record. The regulatory guidance on this section comes from the 2010 Preamble which includes the following:
“Many advocacy groups, particularly those representing blind individuals and those with low vision, urged the Department to add language in the final rule requiring the provision of accessible material in a manner that is timely, accurate, and private. This, they argued, would be especially important with regard to billing information, other time-sensitive material, or confidential information. The Department has added a provision in § 36.303(c)(1)(ii) stating that in ‘‘order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way so as to protect the privacy and independence of the individual with a disability.”
The statute and regulations, however, include a variety of examples of auxiliary aids and services that can be used to provide effective communication. Many of these auxiliary aids and services use consensus-based technical standards that are not mandated in the law or standards. For example, “telephones compatible with hearing aids” are compatible with hearing aids because they meet a variety of technical standards that allow that compatibility to function. “Closed caption decoders” can decode closed captions because the captions are encoded in the video in accordance with a variety of technical standards. The majority of these standards are internationally developed consensus-based standards. In some cases, the relevant standards are encouraged or adopted by other regulatory agencies in the U.S. federal government. In the case of communication technologies often the Federal Communications Commission (FCC).
Applying that logic to the auxiliary aid or service of “accessible electronic and information technology” one can reasonably conclude that the most commonly used consensus-based standard—the Web Content Accessibility Guidelines (WCAG)—would serve as a valid means of determining if it’s a valid accessible format. That standard has been adopted by many other U.S. Federal government agencies—notably the Access Board under the Section 508 requirements. It is the de-facto standard used in the industry. Finally, the flexibility of choosing to adopt that standard for accessible technology on the part of the covered entity is wholly in line with the intent of the law and regulations covering auxiliary aids and services.
A second point on this section: “In a timely manner” is especially challenging in the context of electronic systems. The definition of timely on the Internet is “now.” The standard mode of communication for all people online is immediate. Timely = now. To say that an alternate communication system provides “effective” communication if the communication is anything other than real-time—by this definition—would be troublesome given that it’s unlikely to be determined to be timely in context. This further reinforces our view on test 4, Real-Time. With that noted, if, in consultation with people with disabilities, a reasonable conclusion is made that better communication can be provided in a less than real-time fashion while still being effective we’d view that as wholly reasonable under the regulations.
Test 8: Does it protect the individual’s privacy?
“in such a way as to protect the privacy … of the individual with a disability”
Nearly all reputable online vendors now provide strong safeguards for protecting the privacy of their customers. These safeguards are designed to be inherent in the systems themselves and, as a practical matter, cannot readily be separated from the primary system. Providing a similar level of protection for privacy—which, to us, would seem a reasonable test—would be exceptionally difficult outside of the standard system. So we expect the only way to effectively protect the privacy of a person with disabilities—and do that on par with primary systems—is to do that in a method that makes the primary system directly accessible to such users.
As a side note this concept aligns exceptionally well with the General Prohibition of the ADA related to Separate benefit covered under 42 U.S.C. § 12182 (b) (1)(A)(iii) and defined in more depth in the regulatory record at 28 CFR 36.202 (c). We also covered this in depth during our discussion of Integrated Settings. Those requirements, as a whole, are meant to guard against providing alternative or separate experiences for people with disabilities. A key reason for that is the parity of experience in a “separate” environment is hardly ever “equal.” Privacy and security protections online are good examples of this.
It’s also worth noting that the need to protect privacy and independence are balancing factors on the public accommodations “right” to define what auxiliary aids and services are provided. “While the public accommodation has the obligation to determine what type of auxiliary aids and services are necessary to ensure effective communication, it cannot unilaterally determine whether the patient’s privacy and confidentiality would be maintained.” This reinforces the strong recommendation we’ve included under “Test 6—Did you arrive upon it in consultation with individuals with disabilities?” If you’ve arrived on a particular approach in discussion with a group of people—and that discussion includes relevant issues like privacy and security—you’ve got a reasonable assurance that you’ve provided something that—in the eyes of the person—protects their privacy.
Systems such as overlays and widgets—unless exceptionally carefully designed—are likely to run afoul of this position. Any such system that tracks the users—via cookies as an example—fundamentally is not affording people with disabilities the same level of privacy and anonymity online as individuals without disabilities. As absurd as it would be for me to have to declare “I have blue eyes” to access a specific site a user should not have to declare “I am blind” to access a site. The color of my eyes is something I can choose to keep private on the Internet. Your blindness is something you can choose to keep private as well.
Test 9: Does it protect the individual’s independence?
“in such a way as to protect the … independence of the individual with a disability”
As noted above the Internet is, by design, a self-service medium. The average web system provides a means of self-service that allows for a high degree of independence for consumers. Providing alternative means of communication fundamentally undercuts this and fails to afford people with disabilities the same level of anonymity and autonomy online as that provided to other individuals.
We’ve chosen to keep this test as a discrete test however, for all practical purposes, it’s likely covered under test 3 where we try to determine if the service provided is a self-service solution.
An Interesting Analogy
In researching this item, I found an example in the ADA Title III Technical Assistance Manual on the topic of auxiliary aids and services I thought was interesting:
“Who is a qualified interpreter? There are a number of sign language systems in use by persons who use sign language. (The most common systems of sign language are American Sign Language and signed English.) Individuals who use a particular system may not communicate effectively through an interpreter who uses another system. When an interpreter is required, the public accommodation should provide a qualified interpreter, that is, an interpreter who is able to sign to the individual who is deaf what is being said by the hearing person and who can voice to the hearing person what is being signed by the individual who is deaf. This communication must be conveyed effectively, accurately, and impartially, through the use of any necessary specialized vocabulary.
Can a public accommodation use a staff member who signs “pretty well” as an interpreter for meetings with individuals who use sign language to communicate? Signing and interpreting are not the same thing. Being able to sign does not mean that a person can process spoken communication into the proper signs, nor does it mean that he or she possesses the proper skills to observe someone signing and change their signed or fingerspelled communication into spoken words. The interpreter must be able to interpret both receptively and expressively.
If a sign language interpreter is required for effective communication, must only a certified interpreter be provided? No. The key question in determining whether effective communication will result is whether the interpreter is “qualified,” not whether he or she has been actually certified by an official licensing body. A qualified interpreter is one “who is able to interpret effectively, accurately and impartially, both receptively and expressively, using any necessary specialized vocabulary. ” An individual does not have to be certified in order to meet this standard. A certified interpreter may not meet this standard in all situations, e.g., where the interpreter is not familiar with the specialized vocabulary involved in the communication at issue.” ADA Title III Technical Assistance Manual, III-4.3200
My big picture takeaway from that is, while the choice in the auxiliary aid and service provided lies with the covered entity, there’s some clear due diligence and thought that needs to be put into it.