This is post #4 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 for the series).
Title III of the ADA explicitly prohibits discrimination on the basis of disability in the operation of a place of public accommodation. There’s more to that which we’ll cover in a future article, but for now, let’s get a couple of definitions knocked out:
Public Accommodation – A public accommodation has a specific definition under the law that you can find at 42 U.S.C. § 12181 (7). The law provides a list of twelve specific public accommodations that are covered under Title III. Much debate has been had about whether or not this list covers digital establishments or if the list of establishments is purely limited to physical operations. We’ll save that debate for another day. For now, it’s worth noting that the majority of courts take the view that to be a public accommodation you must have a connection to a physical place of public accommodation. That’s given rise to the “nexus” argument where a website is a part of the public accommodation – and therefore covered under the ADA – as it’s use is needed to ensure full and equal access to the goods and services of the place of public accommodation.
Readily Achievable – 42 U.S.C. § 12181 (9) – Something that is “easily accomplishable and able to be carried out without much difficulty or expense.” There is a four-part test for Readily Achievable that is defined in the statute but, drastically oversimplifying, it means “easy to do.”
Auxiliary Aids and Services – 42 U.S.C. § 12103 (1) – An auxiliary aid or service is “defined” by what it includes rather than by an exact plain language definition. (We are implying this is the definition as it sits under the subsection titled “Additional definitions” which seems like a reasonable conclusion.) The things that auxiliary aids and services include are:
(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
(C) acquisition or modification of equipment or devices; and
(D) other similar services and actions.
The key thing we’ll note at this point, and circle back to later, is items (A) and (B). The definition of auxiliary aid or service includes either (A) “effective methods of making aurally delivered materials available to individuals with hearing impairments” or (B) “effective methods of making visually delivered materials available to individuals with visual impairments”. Keep that in mind as we think about what a website (or mobile app) actually is doing in the context of the public accommodation – it’ll come in handy.