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Written by: Timothy Stephen Springer
12 years ago

In February, we posted a blog entry discussing the Americans with Disabilities Act (ADA) and its relevance to EIT accessibility. Since that time, recent information has come out which more clearly discusses the Department of Justice position on Internet Accessibility. We’ve updated our “Current State of ADA” information here so that this important information is included.

The United States has several laws which are aimed at eliminating discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. Of those, some of them explicitly discuss discrimination relevant to Electronic and Information Technology. Of them, the one most relevant to private sector entities as well as to State & Local governments is the Americans with Disabilities Act (ADA).

The ADA is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal. On September 25, 2008, President George W. Bush signed into law The ADA Amendments Act of 2008 (ADAAA). It is intended to give broader protections for disabled workers and “turn back the clock” on court rulings which Congress deemed too restrictive.

Applicability of ADA to Web & Software Accessibility

As it relates to EIT accessibility, ADA Title II specifically mandates that state and local government websites be accessible. In content provided on the ADA website, the DoJ says:

The Americans with Disabilities Act (ADA) and, if the government entities receive Federal funding, the Rehabilitation Act of 1973, generally require that State and local governments provide qualified individuals with disabilities equal access to their programs, services, or activities unless doing so would fundamentally alter the nature of their programs, services, or activities or would impose an undue burden. http://www.ada.gov/websites2.htm

Applicability of ADA to the websites of public sector entities has been regarded as “unclear” by many, because this topic isn’t explicitly discussed in any official information published by the Department of Justice. Despite this, the DoJ has issued numerous amicus briefs (i.e. Hooks v. OKBridge, 2000) which demonstrate that the DoJ regards the web as a place of public accommodation. Recently, however, the DoJ has made their position much more clear. In April of this year, the House or Representatives Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing titled “Achieving the Promise of the Americans with Disabilities Act in the Digital Age – Current Issues, Challenges, and Opportunities” during which a representative of the DoJ stated:

The position of the Department of Justice has been clear: Title III applies to the internet sites and services of private entities that meet the definition of a public accommodations set forth in the statute and implementing regulations. The Department first made this position public in a 1996 letter from Assistant Attorney General Deval Patrick responding to an inquiry by Senator Harkin regarding the accessibility of websites to individuals with visual impairments. The letter has been widely cited as illustration of the Department’s position. The letter does not state whether entities doing business exclusively on the internet are covered by the ADA. In 2000, however, the Department filed an amicus brief in the Fifth Circuit in Hooks v. OKbridge, which involved a web-only business; the Department’s brief explained that a business providing services solely over the internet is subject to the ADA’s prohibitions on discrimination on the basis of disability. And in a 2002 amicus brief in the Eleventh Circuit in Rendon v. Valleycrest Productions, the Department argued against a requirement, imposed outside of the internet context by some Federal courts of appeals, that there be a nexus between the challenged activity and a private entity’s brick-and-mortar facility to obtain coverage under Title III. Although Rendon did not involve the internet, our brief argued that Title III applies to any activity or service offered by a public accommodation either on or off the premises.

How ADA Is Enforced

Procedures for determining compliance with the ADA and handling grievances involving ADA compliance vary depending upon a variety of factors relating to the type and size of the entity. For instance, state & local agencies with 50 or more employees are required to have established at least one employee responsible for managing ADA-compliance including the publication of compliance related notices and procedures and the handling of all complaints. Similarly, a variety of avenues exist for an individual with a disability to seek resolution of an ADA related concern depending on the context. These avenues range may include:

  • Informal complaint
  • Formal complaint in accordance with the documented grievance procedure (such as that of the employer, school, or government agency)
  • Filing of private legal action in federal court
  • Formal complaint to the federal government agencies responsible for compliance (depending on the context) such as:
    • EEOC
    • Department of Education
    • Department of Justice

Complaints submitted to the DOJ are handled by the Office on the Americans with Disabilities Act, who will try to resolve the issue via the ADA Mediation Program. In cases where the mediation process does not resolve the complaint, the Justice Department may choose to pursue litigation to gain resolution:

Complaints of Title II violations may be filed with the Department of Justice within 180 days of the date of discrimination. In certain situations, cases may be referred to a mediation program sponsored by the Department. The Department may bring a lawsuit where it has investigated a matter and has been unable to resolve violations. http://www.ada.gov/cguide.htm

Through lawsuits and both formal and informal settlement agreements, the Department has achieved greater access for individuals with disabilities in thousands of cases. Under general rules governing lawsuits brought by the Federal Government, the Department of Justice may not file a lawsuit unless it has first unsuccessfully attempted to settle the dispute through negotiations. http://www.ada.gov/janmar09.htm

The Department may file lawsuits in Federal court to enforce the ADA and may obtain court orders including compensatory damages and back pay to remedy discrimination. Under title III the Department may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.

Although the majority of ADA enforcement activity by the DoJ is based on physical access and discriminatory behavior, they frequently also deal with EIT accessibility as well. For instance, in the first quarter of 2009:

An individual who is blind complained that a Texas credit union’s online bill payment service was inaccessible to customers who use audio screen readers. The credit union worked with the company providing its online bill payment software to include an alt tag providing text information for each image and graphic displayed on its bill payment web pages, enabling a person with a vision disability to understand what each image or graphic represents. The complainant has since been able to access the online bill payment service to regularly pay her bills via the credit union’s website. http://www.ada.gov/janmar09.htm

Similar examples can be found on the ADA.gov website as early as Q2 2001.

ADA Related Cases

All accessibility-related legal action taken in the private sector allege violations of the ADA. As outlined below, several cases have provided further evidence that websites and other IT systems are covered under ADA.

  • US DoJ v. City of Port St. Lucie, FL (2006)
    • General ADA audit of the City’s ADA policies & procedures
    • Result: Settlement agreement which, among other things, included improvements in the city’s website
  • Hooks v. OKBridge (2000)
    • Resulted in USDOJ amicus brief stating that websites are a place of public accommodation.
  • Carparts Distribution Center v. Automotive Wholesalers Association of New England (1994)
    • Result: ruled websites are a place of public accommodation
  • Doe v. Mutual of Omaha (1999)
    • Result: also held the web is a place of public accommodation
  • California Council of the Blind v. Bank of America (2000)
    • Result: Bank of America agreed to make Website and ATMs accessible (WCAG 1.0 P1)
  • Bay State Council of the Blind, et al. v. Fleet National Bank
    • Result: Fleet agreed to make Website and ATMs accessible (WCAG 1.0)
  • NFB v. HDVest, Intuit, H&R Block, and Gilman & Ciocia (2000).
    • Result: agreed to make changes to conform to WCAG 1.0
  • ACB, AFB, CCB v. CVS (2009)
    • Result: Settlement Agreement. Agreed to make point-of-sale systems and website accessible (WCAG)
  • ACB, AFB, CCB v. Staples (2009)
    • Result: Settlement Agreement. Agreed to make point-of-sale systems and website accessible (WCAG 1.0 P1 & P2)
  • ACB, AFB, CCB v. Rite Aid (2008)
    • Result: Settlement Agreement. Agreed to make website accessible (WCAG)
  • NFB v Target (2006)
    • Result: Settlement Agreement (2008). $6,000,000 plus legal fees, Agreed to make website accessible (NFB NVA by 2009)
  • Smith v. Hotels.com (2009)
    • Result: Settlement Agreement. Agreed to make Hotels.com and Expedia.com reservation services accessible
  • State of NY v. HSBC (2009)
    • Result: Settlement Agreement. “Under the agreement, the company will offer customers with disabilities improved communication options and services, as well as a fully accessible Web site”

Does ADA Apply to Me?

In short, yes. The ADA applies to you if:

  • If you are a state or local government agency which receives federal funding
  • If you are an online retailer
  • If you employ others
  • If you are a software manufacturer or web developer

How Level Access Can Help With ADA Compliance

Accessibility Management Platform

Level Access’s Accessibility Management Platform (AMP) is a web-based platform for the implementation and management of accessibility across an enterprise. AMP
provides the operating system for accessibility by providing your team with the infrastructure to implement:

  • Auditing – Software to complete formal and informal accessibility audits
  • Training – Online access to training courses and curricula
  • Standards Management – Manage compliance across time and technology platforms

Implementation Support

Our Implementation Support provides the support services needed to rapidly implement accessibility enhancements

  • Testing – Formal and informal testing of systems for accessibility
  • Access Advisor – Responses to technical questions related to standards, best practices, Assistive Technology usage and other accessibility issues
  • Training and Standards Customization – Ongoing maintenance and definition of optimal compliance across training and best practice reference manuals
  • Production Monitoring – Accessibility monitoring for key client assets

For more information on how we can help you with ADA Compliance, please contact us.