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Co-written by: Jonathan Avila

This is post #7 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)

Section (2) of 42 U.S.C. § 12182 (b) is a series of specific prohibitions under the ADA. What follows is a summary of the core requirements in this section that we have seen relate to digital accessibility. As with the last, we’ll start mixing in references both to the statute (law) and implementing regulations as it will help you understand what each requirement means.

Requirement Law Regulation What it Means
Eligibility Criteria 42 U.S.C. § 12182 (b) (2) (A) (i) 28 CFR 36.301

It is discrimination to implement eligibility criteria that screen out or tend to screen out people with disabilities. For example, you can’t say to rent a video, rent a hardware store tool, to access adult content, or rent out a room you must have a driver’s license to operate a motor vehicle when the activity does not require operation of a motor vehicle. These criteria can inadvertently screen out people with disabilities such as people who are blind who may not be able to obtain a driver’s license. There may be a need for verification of state or other form of identification and this should be used when needed to verify a person. In our experience these are seldom in the digital space this overt and more subtle eligibility criteria often arise – more on those below.

This section also prohibits placing a surcharge on people with disabilities in providing support for access – notably auxiliary aids and services. As a digital example, you probably won’t see a website saying, “blind people aren’t allowed to use this website.” What you might see, though, is an eligibility process that requires solving a CAPTCHA process on sign-up, taking a picture of your identification card, or selecting a birth date that doesn’t have an accessible alternative. Another example is a website that provides a phone number as an accessible alternative but charges a twenty-dollar surcharge for verifying your age identification, or for booking by phone. We would think of those as de facto eligibility criteria.

Reasonable Modifications 42 U.S.C. § 12182 (b) (2) (A) (ii) 28 CFR 36.302

It is discrimination to fail to make reasonable modifications to policies, practices, and procedures to ensure equivalent access for people with disabilities. The idea here is that it is discrimination to fail to modify the way you do business – your policies, practices, and procedures – to ensure equivalent access for people with disabilities. This one is cited a lot in digital accessibility lawsuits and a request of injunctive relief to force organizations to change their policies, practices, and procedures is present in nearly every lawsuit we review.

An example of policies, practices, and procedures is requiring a person to complete paper forms to be eligible for services. A modification can be made to allow the person to fill out digital forms for the service without eliminating the requirement for completion of forms.

Auxiliary Aids and Services 42 U.S.C. § 12182 (b) (2) (A) (iii) 28 CFR 36.303

It is discrimination to fail to make auxiliary aids and services available to people with disabilities to ensure you can effectively communicate with them. Note: I am summarizing a lot with that description and it warrants more detailed analysis – more to come on that front.

Barrier Removal 42 U.S.C. § 12182 (b) (2) (A) (iv) – (v) 28 CFR 36.304

It is discrimination to fail to remove structural barriers to access when it’s readily achievable to do so. Note: This one is widely misconstrued in the context of digital systems and removing “barriers to access” in them. This requirement, however, only relates to physical structures and is not related to digital systems. We’ve got a more detailed analysis of that in a subsequent post.

Eligibility Criteria

The limitation on Eligibility Criteria as defined in the ADA covers restrictions that screen out or tend to screen out people with disabilities. These are seldom as straightforward as to where a person with a particular type of disability is refused the service directly because of the disability. A far more common example would be something seemingly clear-cut that has a material (significant and relevant) negative impact on societal participation for people with disabilities.

For example, driver’s licenses are often the standard type of state-issued government ID needed for identification in many places. A requirement for a driver’s license is often used in an application process as a way to verify one’s age, identity, or another status apart from actual driving qualification. This can end up as an obstacle for people with disabilities who are unable to meet requirements (visual or other) for a driving license, even if it may not be done with any ill intent – but a lack of awareness. In other words, it’s often not the ability to operate a motor vehicle that needs to be verified but instead the proof of identity or age in order to rent out a room, make a purchase, etc. Thus, it’s acceptable to require a driver’s license only when the qualified operation of a vehicle is required. For situations where that is not needed, other forms of state identification including real IDs can provide the same identification without an unfair eligibility requirement.

Another cause where such an eligibility requirement is used is to specifically weed out people with disabilities because the criteria may be associated with safety.  For example, a rafting trip, roller coaster, or another ride, may require a driver’s license or some capability such as sight as a way to meet the safety requirements of an activity. While organizations can require confirmation of a person’s ability to safely participate – the requirements need to be focused on those related to the specific activity, and not to the broader ability to operate a motor vehicle or possess a particular sense/physical capability unless the activity requires this.

For a website, identification may be needed for certain types of content and activities. However, more broadly, eligibility requirements that may implicitly limit users with disabilities are, more commonly, items related to sign up or eligibility validations that require the use of a mouse, the use of sight, timed activities (when such timing is not needed for eligibility), or hearing to complete. This is often the case with activities such as inaccessible tests to validate the person is a human versus machine (CAPTCHA) or completion of eligibility materials that are not accessible or require some action such as taking a live picture of yourself, completing a timed test, etc., which may be difficult or impossible for some people with disabilities.